Exploring Proceduralism

Procedural Liberalism can be clarified by exploring various objections that critics might raise. First, a political process may be inherently unjust, due to the disenfranchisement – whether de jure or de facto – of dissenting groups. Excluded minorities are surely not required to respect the laws that result from such a process. But procedural liberals can agree with this. The procedural liberal’s first priority is to establish and uphold just processes – and they may support radical action to this end, as explained here.

A more serious objection begins from the observation that just procedures may yield horrifically unjust results. Sectarian majorities may democratically decide to engage in genocide, slaughtering a minority group with popular support, and paying no heed to the occasional outraged cries of dissent. Critics may ask: “Is crying really all that a procedural liberal would do in such a situation?” I suggest not. Democratic formalities are insufficient to guarantee a just political system. Procedural justice instead arises from the interaction of political institutions and political agents. Citizens must exemplify civic virtue through their commitment to political cooperation, i.e. deliberating with their fellow citizens in good faith, towards the common good. To unilaterally abandon cooperative politics is – no matter one’s first-order ends – to commit a meta-political (or procedural) injustice. Indeed, such aggressive civic disrespect amounts to an act of civil war. I consider this the strongest argument against vigilantism. But it is worth noting that this also applies to sectarian governments that act entirely within the “law”. A democratic majority might decide to wage war against a disrespected minority. This is unjust as a matter of form, and so may be opposed without constraint by procedural liberals, who may act to restore a just system where civic respect reigns supreme.

Not all gross injustices are assured to take this form, however. Some will be found in the private sphere, and hence outside the scope of civic respect. For example, if – after due consideration of dissenting views – a democratic majority legally decrees that every first-born child will be tortured and sacrificed to appease the gods, this involves no civic disrespect. This is because young children are not public actors or ‘citizens’ as I use the term here. They lack political agency, so cannot be civilly disrespected. But the moral circle is broader than the political circle. We certainly owe children moral respect, and torture surely violates this if anything does! This example highlights that civic respect is but one value among many, and hence may be subject to trade-offs. Whilst the procedural liberal insists on giving it lexical priority, critics may use extreme examples – such as the above – to undermine such civic absolutism.

It seems to me that there are two lines of response open to the procedural liberal. One is to simply bite the bullet, and insist that coercive interference can never be justified in response to purely first-order atrocities. Instead, opposition must be directed through legitimate channels only (including civil disobedience, properly defined), for as long as these remain available. Here the procedural liberal might reiterate my earlier arguments, pointing out that although isolated acts of political vigilantism may seem desirable, in reality acts never occur in isolation. As a general rule, the coercive imposition of first-order morals by private actors will plausibly be misguided more often than not. An holistic conception of rationality – concerned with global rather than local optimality – may then commit us to a blanket ban on such interference.

Alternatively, one might build further restrictions into the account of procedural justice, e.g. requiring that political action be based on “public reasons” whose legitimacy could be appreciated by any reasonable agent. This would prevent citizens from legislating religious dogmas, for instance, precluding the human sacrifice scenario. But such a restriction would arguably rob procedural liberalism of its first-order neutrality,* thus providing the devoutly religious with an excuse to oppose it. That doesn’t necessarily mean it’s wrong – or so normative realists would claim. But if we instead hold that norms are grounded pragmatically, then the above point may suggest that we have more reason to endorse my broader conception of procedural liberalism after all. We could reasonably hope for it to attain broader support, and – despite the (remote) risk of civic respect obtaining without its moral counterpart – this result would almost certainly be a good thing.

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P.S. The asterisked point is disputable -– for example, one might argue that civic respect requires not just deliberating with one’s fellow citizens in good faith, but substantively engaging with them in a manner that involves the giving of reasons that they can appreciate (i.e. public reasons). In other words, one might reasonably hold that the exercise of political power over another requires being able to justify it to that person. What do you reckon?

Categories:

• justice
• law
• politics
• ethics