Enough Justice? Enough Democracy? A comment on Shapiro's Democratic Justice?

Ian Shapiro's Democratic Justice attempts to confront indeterminacy and fundamental value pluralism while at the same time offering some first principles for politics and public policy. In this aspiration it is, to a considerable degree, successful. It makes a credible case for a distinctive conception that deserves wide attention. The strategy it employs, to seek protection for "basic interests" as a matter of justice under government auspices and then leave the rest of policy dealing with non-basic (or "best") interests to democracy under specified conditions, is intuitively appealing and powerful. Quite naturally, it also raises important questions. I will try to raise a few of them for discussion here.

The argument begins with the claim that "there has been little systematic attention by political theorists to the ways in which considerations about democracy and justice are or should be mutually related" (p. 3). Or, once again: "the question what should be the relations between the demands of justice and the practices of a democratic polity remains remarkably unexplored" (p. 5). While this is largely true of the post-Rawlsian literature to which Shapiro refers, it is worth noting, first, that Rawls, unlike Nozick and some others, specifically incorporates considerations of democracy into his first principle of justice. Second, there is a long and distinguished literature in democratic theory (to which Shapiro briefly refers), which can be viewed as centrally concerned with the intersection of democracy and justice. I am referring to the literature on what might constitute "tyranny of the majority"—a major issue in the thinking of Madison, ¹ Toqueville, ² Mill, ³ Schumpeter, ⁴ Dahl, ⁵ and others more recently. ⁶ From this standpoint, democratic theory has not been blind to considerations of justice and injustice. Indeed, it has long been preoccupied by them. The fact that the people can democratically vote, perhaps in procedurally appropriate ways, to do very bad things to some portion of their population—to commit injustices—is one of democratic theory's central problems. And the methods that might control the "passions" or "interests" that motivate "factions" to do these bad things is a prime preoccupation of democratic theory.

So if the frame of reference is not just recent work but the whole tradition of democratic theory, then Shapiro's basic question looks less novel than it does in the light of recent Rawlsian and post-Rawlsian work on hypothetical social contract theory. But still, it must be granted that Shapiro's approach to dealing with the basic question of how justice and democracy intersect is, indeed, novel and worth serious consideration.

The two key steps in my view are a) the distinction between basic and other ("best") interests and b) the conditions for democracy that are supposed to facilitate justice. "Democratic justice" (as Shapiro terms his theory) will require the protection of basic interests wherever possible, but will defer all other issues to democratic decision-making under the specified conditions. There is too much indeterminacy and room for controversial judgment, Shapiro holds, about any metric for distribution for there to be a complete theory of justice that would supplant democratic decisions once the basics are provided. Shapiro's idea is to specify the core of justice (or injustice) through the protection of basic interests and then leave democracy, as appropriately perfected, to resolve the indeterminacies of all the inevitably more controversial issues posed of public policy.

Because Shapiro focuses on satisfying a minimum level for everyone ("basic interests") but then lets everyone have their say, in some relevant sense, on how policy outcomes might affect people's interests above that basic level (their "best interests") the two basic lines of questions that immediately arise are a) Does the focus on basic interests, when combined with further democratic determinations, provide an adequate account of justice (and of how to avoid injustice)? b) Is the form of democracy specified by the theory adequate to the task? In...