Questions About Normative Consent

David Estlund's Democratic Authority is a tour de force. Combining novelty and imagination with rigorous argumentation and full-contact engagement with a vast contemporary literature, Estlund develops a compelling case for an original version of a thesis that many democratic theorists tend to find odd, if not repellant: knowledge matters for political authority. Along the way, Estlund examines every major conceptual issue pertaining to democracy. Even those who have no interest in Estlund's positive proposal still have much to learn from his treatments of the concept of fairness, social choice theory, contractualism, social protest, and utopianism in political philosophy. In short, this is state-of-the-art democratic theory. We know of no recent book that matches its scope and depth.

Accordingly, we cannot hope to address Estlund's theory in any substantial way in this short paper. Our aim is decidedly modest. We want to isolate one of the crucial elements of Estlund's view and examine it. We are not sure whether what we have to offer rises to the level of being an objection just yet, so we take ourselves to be raising a few questions. Our intention is not to engage in root-and-branch critique, but rather to set out some points on an agenda for further work.

We will proceed as follows. First, we will sketch Estlund's view of democratic authority, a view which he calls epistemic proceduralism. Then we will show how epistemic proceduralism depends upon a certain general conception of authority, what Estlund calls the normative consent view. The normative consent view of authority is deeply intuitive, but, as we shall argue, it gives rise to certain puzzles which we should like Estlund to address. If Estlund is unable to respond to these concerns convincingly, the epistemic proceduralist program as he has presented it is jeopardized; if, alternatively, he is able to speak compellingly to these worries, we will have gained a deeper understanding of epistemic proceduralism.

I

One way of understanding epistemic proceduralism is to see it as an attempt to capture the virtues and avoid the vices of two more familiar views of political authority. On one such view, call it fair proceduralism, the authority of any political decision derives from its having been produced by a procedure which instantiates fairness; the outcome's authority does not depend on an evaluation of its worth according to a standard independent of the procedure by which it was produced. Another familiar view, call it the correctness view, holds that political outcomes are authoritative only if they are correct according to some independent standard of justice. On correctness views, the authority of a political outcome does not depend on its having been produced by one procedure rather than another; the question of its authority is purely a question of its correctness.

Of course, these glosses are crude, and Estlund considers several distinct versions of each kind of view; however, these sketches are sufficient to help us to review Estlund's objections, which will in turn help us to place his epistemic proceduralism. As for fair proceduralism, Estlund argues that no account of the authority-bestowing property of any procedure that deserves to be called democratic can avoid making reference to procedure-independent standards.¹ To put the point another way, if, as the fair proceduralist alleges, authority owes entirely to the fairness of the process, why not opt for processes which seem to better instantiate that property? Estlund captures this thought in the "one-liner" for which he has become well-known: why not flip a coin instead?² The argument runs that any attempt to show that democratic voting is preferable to coin-flipping will inevitably invoke procedure-independent criteria. Hence, according to Estlund, fair proceduralism fails and we are forced to adopt a view of authority that recognizes some procedure-independent standards.

Correctness views embrace such standards. But correctness views tend towards political elitism, what Estlund calls epistocracy, rule of those who know best how correctly to decide policy.³ The challenge, then, is to "let truth be the guide without illegitimately privileging the opinions of...