Chapter 2: Deliberation against Domination?
By Ian Shapiro
Shapiro suggests that deliberation can play a role in decreasing domination. He suggests that those with insiders’ wisdom are best able to judge how deliberation can help enhance an activity. However, he argues that the government should give increased deliberative power (power of delay, appeal, or veto) to those whose basic interests are at risk. The government should put in place institutional devices that seek to force deliberation as an intermediate form of regulation between proscriptive intervention and full deference to insiders’ wisdom.
Shapiro begins the chapter 2 by asking how should we think about the appropriate role of deliberation in promoting the common good? First, we define common good as that “which those with an interest in avoiding domination share.” Then, the question of whether deliberation promotes the common good is reframed as the question of whether it diminishes domination. The challenge is to figure out ways to manage the power dimensions of human interactions to limit domination while also minimizing interference with the non-power dimensions of human interaction. He argues that deliberation can help in this situation.
Deliberation can be misused by the powerful to procrastinate. It is also possible that institutional methods of promoting deliberation might just lead to bargaining. Shapiro aims to deal with this by limiting the right to demand increased deliberation to those who are vulnerable in a given situation because their basic interests are at stake.
2.1 Thinking about Power
Some in the power literature argue that power trumps institutional arrangements, so studying institutions is uninteresting. Others focus on defining the three faces of power: decision-making, agenda-setting, and repressing preferences that would otherwise be expressed and acted on. These studies do not explain the institutional implications of their theories – i.e. they don’t explain how decisions should be made, how agenda setting power should figure into the debates about institutional reform, or how quiescence should be dealt with when it is identified.
There are also Foucauldian points of view that argue power relations are ubiquitous and ineliminable, but this also doesn’t help to choose among institutional possibilities. Clarissa Hayward makes case that domination is minimized to the degree that freedom is enhanced, where this is understood as enabling people to shape their own fields of possible action. She suggests that political institutions should be structured such that their effects on other social practices and institutions are freedom promoters, but she doesn’t say how this is to be achieved.
Power relations suffuse contexts as various as workplace, family, and church, but things other than exercises of power also go on in these areas. The challenge for democratic theorists in this area is to devise mechanisms for structuring the power dimensions of human interaction so as to minimize domination while limiting interference with these other activities as much as possible.
2.2 Insiders’ Wisdom and Superordinate Goods
The benefits of deliberation are not unequivocal; deliberation can sometimes create costs that outstrip its advantages. It is possible that third parties (such as the government) may not know how much and what sorts of deliberation will enhance other activities. For example, if increasing some types of deliberation could make firms more efficient, it seems likely that those in the firm would be best at identifying these opportunities. If deliberation would make a sports team better, those on the team would have incentive to identify and engage in these activities to ensure that they win. These examples suggest that there is insiders’ wisdom: those skilled in a particular activity are more likely than anyone else to know how to do it well (or to know how much and what sorts of deliberation will enhance it).
It’s possible that economic efficiency and winning at sports are misleading examples. Consider, instead, evaluating scholarship in the context of tenure promotions at universities. These decisions are based on judgments rather than objective criteria. Still, there is no reason to think that the government would be better at making these judgments than those within the university.
It is possible that insiders could be wrong about how to enhance an activity. Managers in a firm may undermine the interests of shareholders or make short term decisions. It is important to distinguish arguments for intervention designed to protect the interests of vulnerable employees from arguments that assume outsiders know how to run firms efficiently.
In a traditional democracy, the people are supposed to govern themselves. However, modern democracy uses a division of labor. In this system there are insiders who are expected to have expert competence. For example, outsiders should not be able to tell the Supreme Court justices when or how long to deliberate, and they should not be allowed to adjust the rules of the House and Senate. However, governing does differ from running firms, families and other endeavors. A substantial part of the super-ordinate good involved is the exercise of legitimate power in a given territory or domain. This warrants control of politicians via democratic competition for power.
Some suggest that government should institute increased deliberation among citizens because it is inherently (rather than instrumentally) valuable. Hegal suggested that we only become truly human in justifying ourselves to one another. This is one credible view of the human condition, to be sure, but there are others, and it is difficult to see why it should be privileged over those other views. People should be free to deliberate, but should not be forced to do so. However, it should also be ensured that people with an intense preference for deliberation don’t exert disproportionate influence on outcomes by monopolizing control of agendas.
2.3 Limiting Domination Through Deliberation
Decisions about how to pursue superordinate goods are best left to those with insiders’ wisdom, but their freedom to make them should not be unfettered. Because superordinate goods are bound up in power relations, the government must regulate their pursuit to limit the possibility of domination.
The right to deliberative participation should vary with the degree to which people are trapped. As the costs of exit increase, the importance of voice also increases. For example, if a stockholder is unhappy with a firm, she can sell her shares. An unhappy employee of the firm doesn’t have the same freedom of action, so the employee has a stronger claim to deliberative participation. When the affected party cannot participate in decision-making (they have no voice), then others should insist on significant deliberation. This is the case with juries in criminal cases and with decisions on ending life support for the terminally ill.
When exit costs are low for everyone, there is no reason to require deliberation: by definition the interests at stake are not hostage to the decision. No deliberation is required if exit costs are high for everyone and the interests at stake are all the same. For example, an ex ante veil-of-ignorance decision by a healthy population about how to ration future organ transplants would provide all people with high exit costs and equal interests at stake.
The kind of interest at stake (not just the costs) need to be taken into consideration when deciding whether or not deliberation is appropriate. For example, South Africa’s white minority stood to lose more than nonwhites, but they should not have been entitled to rights of delay or appeal.
The right to deliberation, including delay, appeal, or veto, should be activated when basic interests are at stake. Basic interests include obvious essentials they need to develop into and survive as independent agents – similar to lists provided by Rawls, Dworkin, and Sen. Anyone in a position to threaten a person’s basic interest evidently has great power over him. An employer may have high exit costs (stocks, etc.) for leaving company, but we assume their basic interests are not involved. An employee is more likely to have his basic interests at stake. This type of consideration led to the National Labor Relations Act of 1935, which allowed labor unions to form.
Government regulation can create varying amounts of “voice.” For example, some regulations give citizens the right to challenge unfair leases in court. As a normative matter, we can say that the more one’s basic interests are threatened, the stronger one’s claim is to insist on deliberation, but that beyond some threat threshold even this is insufficient.
Generally, we can think of institutional devices that seek to force deliberation as an intermediate form of regulation between proscriptive intervention and full deference to insiders’ wisdom. In this spirit, we might replace proscription voucher schemes in education with a solution in which parents that do not opt out of public schools are given a delay, appeal, or maybe veto rights if the promised benefits of their children’s education do not in fact take place. In this case, those promoting vouchers would need to convince these parents to allow the program. The government would decide how strong to make the deliberative rights of the non-participating parents, but would not just proscribe vouchers. This solution recognizes the cognitive limitations of government without abdicating their responsibility to regulate the power dimensions of social life to limit the possibility of domination.
In general, rather than having the government evaluate the merits of innovative funding schemes, it could use its power to make those who advocate them persuade those whose basic interests are plausibly at stake. Strengthening the hand of the vulnerable in this way is intended to encourage the search for cooperative solutions when interests conflict.
Petit suggests extending strong “contestatory” rights to all minorities in democratic systems, in an effort to move us closer to a world in which “what touches all” will be “considered and approved by all.” However, unless we limit the rights of delay to those whose basic rights are threatened, we privilege the status quo.
2.4 Deliberations versus Bargaining
Some may argue that Shapiro’s proposal that government should strengthen the hand of weaker parties whose basic interests are threatened is sufficient to guarantee more equal bargaining, perhaps, but not deliberation. Shapiro acknowledges that this may be true. Since deliberation requires solicitous goodwill, creative ingenuity, and a desire to get to the best answer, it is doubtful that government can ever insist that people deliberate. Even juries can’t be forced to deliberate if they decide to bargain instead (because they want to go home, etc.) However, government can increase the likelihood that insiders will deploy their wisdom to search for the deliberative solutions that may be waiting to be discovered. And though it is true that bargaining may sometimes be inferior to deliberation, but domination is always inferior to both