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DVOCATE: Though I agree that the problem of process and substance is a serious one for democratic theory and practice, I also think that the nature of the problem is often obscured by certain mistaken assumptions.
First, it is a mistake to think that procedures are somehow devoid of moral significance. I hear people say, for example, that "procedures should not be permitted to stand in the way of justice." Yet justice is procedural as well as substantive. Often, as in criminal trials, no process can guarantee that the outcome will be substantively just: A fair trial may still lead to a mistaken verdict. Nonetheless, it is possible to conclude that one process is more likely than another to arrive at the right result. Thus we may decide that in criminal cases a jury of one's peers is superior to any feasible alternative. At most, however, even the bestdesigned judicial system can guarantee only procedural justice; it cannot guarantee substantive justice. A constitution can ensure a right to a fair trial; it can't absolutely guarantee that a fair trial will always lead to the right verdict. But it is precisely because no such guarantee is possible that we place such a high value on a fair trial.
Second, and following from the first point, it is a profound mistake to speak as if the requirements of justice conflict with the "merely formal" procedures of democracy.
The justification for the democratic process allows us to say that, given certain assumptions, the democratic process is itself a form of justice: It is a just procedure for arriving at collective decisions. Moreover, insofar as the democratic process allocates the distribution of authority, it also provides a form of distributive justice: A proper distribution of authority is a just product of a good constitution. Distributive justice requires a fair distribution of crucial resources—power, wealth, income, education, access to knowledge, opportunities for personal development and self worth, and others. Among the most crucial resources in any society is power. And the distribution of power is partly determined by the distribution of authority over the government of the state and over other associations. This authority is important, among other reasons, because these governments help to influence the way many other resources are distributed. Consequently a choice between the democratic process and substantive outcomes is not a simple choice between procedures and justice nor even between procedural justice and substantive justice. It is a choice between the justice of the democratic process, both procedural and distributive, and other claims to substantive justice. What I'm saying is, in short, that the democratic process is packed to the hilt with substantive values.
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RITIC: But you do admit that the democratic process hardly exhausts all claims to substantive justice. As you just said, there are other claims, too. If so, isn't it perfectly reasonable to ask that these claims be protected in some way from being violated by decisions made through the democratic process?
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DVOCATE: Whether it's reasonable to ask for limitations on the democratic process depends on whether you can supply an alternative. That points to a third mistake.
Unless you can specify a feasible alternative process that is more likely to produce just outcomes it is wrong to contend that a process for making collective decisions is defective solely because it may lead to unjust outcomes. Even if we could establish independent criteria of justice against which to compare the performance of a process, it looks to be the case that no process for making collective decisions can, in John Rawls's terms, do more than provide imperfect procedural justice.
I'd like to use some of Rawls's categories to clarify the possible relation between procedural and substantive justice. We'll say that, if a procedure were able to guarantee an outcome that we independently define as just, then we have perfect procedural justice. An example would be a trial procedure that would always find the guilty to be guilty and always acquit the innocent. As Rawls says, "Pretty clearly, perfect procedural justice is rare, if not impossible, in cases of much practical interest" (1971, 85). So ordinarily we have to make do with the most feasible procedure we can design, even though it will sometimes fail, as in a criminal trial. That's imperfect procedural justice. Sometimes where we just don't have an independent criterion for the right result we can design "a correct or fair procedure such that the outcome is likewise correct or fair" (86). Rawls calls that pure procedural justice. An example might be if we were to divide a cake between us and you first sliced the cake, and afterward I chose which slice I wanted.
Often, though, neither "perfect," "imperfect," nor ''pure" procedural justice is feasibly attainable. Independent criteria may exist but they aren't enough to enable us to say which is the right outcome, except within a range of possibilities. Within that range, various outcomes may be equally just. Rawls somewhat confusingly calls
"quasipure" a procedure that ensures a choice within that range. More often than not, quasipure procedures may be the best we can arrive at. For example, even if a country were to adopt Rawls's famous two principles of justice as the proper criteria for legislation, "on many questions of social and economic policy," he concludes,
"we must fall back upon a notion of quasipure procedural justice" (201). It may be helpful to put Rawls's categories into a table (table 12.1).
Table 12.1. Procedural and Substantive Justice Form of Procedural
Justice
Independent Criterion?
A Perfect Procedure?
Perfect yes yes
Imperfect yes no
Pure no yes
Quasipure yes quasi
aSource: Adapted from Rawls 1971, 85–86, 201.
a
Indeterminate within a range of choices acceptable according to the criterion.
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Page 166
Let me read one of Rawls's conclusions, because I think he's dead right on this point:
Clearly any feasible political procedure may yield an unjust outcome. In fact, there is no scheme of procedural political rules which guarantees that unjust legislation will not be enacted. In the case of a constitutional regime, or indeed of any political form, the ideal of perfect procedural justice cannot be realized. The best attainable scheme is one of imperfect procedural justice. (198)
But even imperfect procedural justice may elude us. As Rawls admits, if his two principles of justice were adopted as constitutional principles, their generality would leave a large area of indeterminacy in their application to specific decisions. Consequently, as he says, the most we can often reasonably expect is his "quasipure procedural justice" (201). And if we can't discover independent principles for judging the outcomes, then we might have to fall back on pure procedure.
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RITIC: I hope you're not going to try to argue that a majority decision is such a procedure. You begin to sound like Rousseau when he says: "The general will is always right and always tends toward the public utility" (1978, bk. 2, chap. 3, p. 61). Surely you will admit that majorities have often done a lot of harm to minorities.
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DVOCATE: I'm not so foolish as to deny that. Nonetheless, I want to call your attention to a misleading implication in your comment. I wonder if you meant to imply that a procedure for making collective decisions is defective if it harms the interests of some persons; for by harming the interests of some persons it necessarily fails to give equal consideration to their interests. If so, I think your conclusion is mistaken. A collective decision that harms the interests of some people doesn't necessarily violate the principle of equal consideration of interests. In making collective decisions it's virtually impossible not to harm some of the interests of some persons. No solution, procedural or substantive, can guarantee that no one's interests will ever suffer in any way. Neither the democratic process nor any other feasible process for arriving at collective decisions can always, or even often, satisfy the requirement that no one should be made worse off. The important point is, however, that if the process by which these decisions are made gives equal consideration to the interests of everyone, then even though the interests of some persons were harmed the principle wouldn't be violated.
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RITIC: But now look what you're assuming: a perfect democratic process in which everyone gets equal consideration. But you know as well as I that political processes in all democratic countries are a long way from measuring up fully to the criteria of the democratic process. You seem to be talking about democracy in an ideal world, not democracy as we know it in the world we know.
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DVOCATE: I can't deny that politics in democratic countries isn't by any means perfectly democratic. In fact, that's a crucial point to keep in mind. I think advocates of substantive limitations on the democratic process often confound situations in which substantive injustice is the outcome of a wellfunctioning democratic process with situations in which injustice results from a failure of the
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