Fabienne Peter (University of Warwick), "The Grounds of Political Legitimacy"

Oxford University Press, 2023

By Fabienne Peter

Everyone who is not an a priori anarchist thinks that political decisions can be legitimate: there are political decisions that a government is entitled to make and that the citizens ought to obey. And that raises the question, what makes political decisions legitimate? Many take a (first-order) normative approach to answering this question. They might argue that legitimate decisions are those that honour or promote justice or that have other beneficial consequences. Or they might argue that legitimate decisions are supported by the citizens’ consent, or selected in a process of collective decision-making or deliberative justification. In The Grounds of Political Legitimacy, I show that underlying these well-known debates, there are some basic meta-normative distinctions that often remain unacknowledged but that clarify what’s at stake in those debates.

In the first part of the book, I develop this meta-normative taxonomy. I distinguish between three main possible grounds of political legitimacy. Many conceptions of political legitimacy are what I call will-based. They hold that political decisions are legitimate in virtue of how they respond to the citizens’ will. Consent theories are one example. Another example are standard conceptions of the legitimacy of democracy, according to which democratic decisions are legitimate because they respect the citizens’ will. Will-based conceptions of political legitimacy are the most common, but there are alternatives.

Fact-based conceptions of political legitimacy hold that political decisions are legitimate in virtue of how they accord with normative facts. Relevant normative facts may be facts about what justice requires. They may also be facts about what a society has most reason to do, or facts about which political decisions bring about best consequences, as utilitarian theories would maintain. Belief-based conceptions, finally, hold that political legitimacy depends on some form of epistemic advantage. On those conceptions, the ground of political legitimacy is what I call cognitive political authority. According to epistocratic conceptions of political legitimacy, for example, political decision-making should be left in the hands of those with superior expertise on political problems. Some epistemic theories of democracy, which hold that democratic processes can benefit from a wisdom-of-the-crowds effect, also take cognitive political authority to be the ground of political legitimacy.

Given these alternatives, what is the right account of the grounds of political legitimacy? I argue that fact-based conceptions are vulnerable to an accessibility objection that rules them out. This objection holds that if legitimacy were just to depend on what is, in fact, the right thing to do, it might not be possible to ascertain the legitimacy of a political decision. But it must be possible to ascertain the legitimacy of political decisions. That’s a key function of legitimacy as a normative concept. Fact-based conceptions can’t guarantee that and that makes them unsuitable. The accessibility objection implies that legitimacy must somehow be tethered to our judgments, whether theoretical or practical. This leaves us with the political will and cognitive political authority as possible grounds of political legitimacy. Instead of arguing for one over the other (I think both have merits), I end the first part of the book by sketching a hybrid conception of political legitimacy. This hybrid conception combines elements of will-based and belief-based conceptions.

Any such hybrid conception of political legitimacy has to settle how the two possible grounds co-determine the legitimacy of political decisions, given that they might be in tension. What the citizens would collectively decide need not be what cognitive political authority, assuming it’s available, would recommend as the right decision. In the book, I argue that epistemic considerations can trump the political will, even in a political system that is overall democratically organised. I develop this idea in the second part of the book.

A key question that I address is whether we can ever be required to defer to others on political decisions. Of course, political issues are complex, so in forming our political judgments, we will inevitably draw on what others have to say. There is no epistemic autarky on political matters, I take it. But can we ever be required to politically defer? Quite a few political philosophers deny this. They think that a requirement to politically defer to others – whether it’s to a group of experts or to a collective democratic judgment that benefits from a wisdom-of-the-crowds mechanism – is in tension with the fundamental democratic commitment to the citizens’ equality and autonomy. On that view, democracy implies that we should all be entitled to have our views heard, not be required to defer to others. I accept that there is a tension. But it doesn’t follow that a conception of political legitimacy should put all the weight on the political will, or that it should subordinate epistemic considerations to responding to the political will.

Here’s my thought. Suppose there is a group of people that can be trusted to identify the right decision in given circumstances. They have the necessary expertise on this issue, either individually or as a result of some collective process of voting or deliberation, and they are identifiable as such. Especially if a lot is at stake – consider climate change, or the threat of a pandemic – any responsible contribution to political deliberation would respond to that. Both ordinary citizens and political office-holders are accountable to respect epistemic norms of political deliberation. Our epistemic accountability, as I call it, thus explains why it would be illegitimate to ignore the group’s advice. In those favourable epistemic circumstances, political legitimacy depends on epistemic considerations, and we should all, political office-holders included, defer to those with the relevant expertise.

This said, politics is typically a lot messier than this. In the normal epistemic circumstances of politics, we should expect well-founded disagreements. A lot of recent work on the role of science in public policy shows that political issues tend to remain epistemically underdetermined, for example because potentially contested value judgments are involved. Conflicting views about what should be done are thus possible, even among the best informed. In addition, there are significant challenges in aggregating all politically relevant information, especially on issues that affect underrepresented groups. In those epistemic circumstances, it would be illegitimate to ignore disagreements among the citizens. If there is no privileged epistemic vantage point from which to settle political debates, then political legitimacy must depend on the political will, for example as determined through a democratic process. And because epistemic underdetermination is the normal case in politics, the political will ends up being the decisive ground of political legitimacy on many issues. But this shouldn’t mislead us into thinking that political legitimacy is unbound by epistemic constraints.