Rights and Majorities: Rousseau Revisited
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The distinction between political theory and political philosophy often seems artificial. The two terms pick out much the same discipline pursued under the auspices of different academic departments. But one topic where there has been a considerable divergence of emphasis between political theorists and political philosophers—or between those who study political morality in philosophy departments and those who study it in departments of political science—is the topic of fundamental rights. Those who believe in rights hold the view that individuals and minorities have certain interests that they can press, certain claims they can make against the rest of the community that are entitled to respect without further ado. Of course this view is controversial: some believe that individuals and minorities have rights in this sense, others do not, and even among those who do considerable disagreement exists about the nature of those rights. The divergence I am interested in, between political philosophers and political theorists, involves two different ways of characterizing that controversy. For philosophers, the controversy has usually been characterized as a choice between individual rights and some version of utilitarian theory. They have taken the controversy to be one about justification. Is utilitarianism, as it claims to be, an adequate theory of political justification, or does it need to be supplemented (or indeed replaced) by an independently grounded theory of individual rights? For political theorists, the contrast is characteristically not with utilitarianism but with majoritarian democracy. Political theorists are interested in forms of political decision making, and they take the argument to be about political legitimacy. Is there nothing that cannot be made legitimate by a majority decision? Or should we recognize limits, based on individual rights, on what a majority can commit a society to do? The contrast between justification and legitimacy may appear bewildering at first, particularly since both are used here in a normative sense. To ask whether a decision is justified is to ask whether it is, on the merits, the right decision; it is to look at the reasons weighing in favor of the course of action decided upon. To ask whether a decision is politically legitimate, however, is to raise a procedural question; it is to ask whether it was taken in the way such decisions ought to be taken. We need a distinction between justification and legitimacy, particularly in a democratic context, because we need some way of distinguishing between the reasons voters have for voting as they do, and the reasons officials have for implementing a certain decision after the votes are counted. I may vote in a popular initiative for California to have a lower speed limit because I think saving lives matters more than fast cars; that is what I think about justification. But I believe the speed limit should stay as it is if most people in the state disagree with me; that is what I think about legitimacy. Clearly, the fact that the majority approves of something is not a good reason for someone to vote in its favor (indeed, if every- one voted on the basis of reasons like that—"I vote for what the majority thinks"—voting would collapse as a practice). Reasons for supporting a proposal of something are logically distinct from reasons for acting in politics on the basis of the fact that people support a proposal. Both are normative, but they capture different stages or levels of normativity in relation to political decision making. Rights, then, can be seen—and are seen characteristically by philosophers—as an issue in the theory of justification. And they can be seen—and are seen characteristically by political theorists—as located in the theory of legitimacy. In this chapter, I develop some ideas about the relation between these two ways of conceptualizing the issues. What is the relation between rights versus utility, on the one hand, and rights versus democracy, on the other?
Source Publication
Majorities and Minorities
Source Editors/Authors
John W. Chapman, Alan Wertheimer
Publication Date
1990
Recommended Citation
Waldron, Jeremy, "Rights and Majorities: Rousseau Revisited" (1990). Faculty Chapters. 1652.
https://gretchen.law.nyu.edu/fac-chapt/1652
