Legislation, Planning and Deliberation1
John Ferejohn
Stanford University
October 2008
1. Introduction
Legislation directs and regulates coercive state powers and anyone subject
to those powers is entitled to an explanation of why her interests are to be subordinated to
those of others or the state. This justificatory burden requires a statute be seen as an
action aimed at furthering some legitimate state interest.2 A statute therefore has to be
interpreted as an intentional action but people disagree as to how to do this. Some judges
think that statutes should be interpreted as their drafters intended; others think they
should be interpreted as the legislature which enacted them intended. There is also
disagreement as to what evidence is relevant for making intentional attributions but all
approaches share the idea that legislation is a kind of intentional action and therefore
sound practices of interpretation ought to take account of this fact.
1
I owe special thanks to Lewis Kornhauser for extensive comments on this paper, not all of which I have
been able to take account of, and to Seana Schiffrin for many comments on an earlier version of it. If you
give me comments, you too may have a place in this footnote. These people are blameless for all the faults
that remain. Early versions of some of these ideas have been presented at the Dworkin-Nagel Colloquium
(I think in 2001), at a conference at the Australian National University in 2004, and at a lecture at the
University of Minnesota Law School in 2005. I am going to keep at it til I get it right.
2
What counts as a valid or legitimate purpose is a complex topic that is not addressed here beyond saying
that validity would include both procedural elements – that the statute was enacted according to established
and fair procedures – and substantive ones as well (including constitutional and possibly other criteria as
well).
1
Legally the main issue has to do with whether the state’s purpose or interest is of
the sort that could possibly justify state coercion and whether the coercive measures it
authorizes are proportionate to that interest.3 But a prior question has to do with the best
or more appropriate attribution of legislative intention. Is the statute aimed merely to
further the particular aims of the individual legislators who happened to shape and
support the legislation? If that were the case, the explanation offered for coercion would
simply amount to telling the complainer that this or that majority simply happened to
prevail on the crucial vote according the procedures of the legislature. That kind of theory
seems incapable of playing a strong justificatory role. The alternative is to say that the
legislation was intended to achieve some legitimate public purpose in a way that
represents a reasonable balancing of your interests and that of the state. Presumably such
an account is needed for justification.
Legislative intentions capable of playing this justificatory role must be relatively
stable over time and not merely the (momentary) intentions of a particular legislature or
any of its particular members. This is a controversial claim. Some would argue instead
that the only significant (legal and moral) intentions are those of the enacting legislature
because it was the legislature that enacted the statute. While the text enacted by the
original legislature has a great deal of evidentiary authority in attributing the intentions
and beliefs of the enacting legislature, the beliefs and expectations of the enacting
legislature may not have been accurate guides to how it would apply over time. For this
reason, notions of original intent that privilege the intentions of the enacting legislature
give the wrong kind of guidance about the purposes to which the statue is directed. Later
3
This is a complex question that is resolved in various ways in different legal systems.
2
lawmakers will have had the chance to learn much more about the circumstances of
application of the original statute. Having the benefit of experience in applying the law,
their expectations and beliefs are likely to be more accurate than those of the original
legislature.4 And as they will have had many opportunities to update or change or even
abolish the statute in light of these new developments, it seems to me plausible to think of
them as continuing to intend to pursue the same aim, more or less, as the original
legislature. So I want to think of the intent of the legislature as attributable to the
legislature conceived as an entity that exists stably over time.
I want to distinguish between a realist notion of legislative intent, which sees
intentions as playing a causal role in enacting statutes, and an instrumentalist notion
which sees legislative intent as a “posited” entity, which provides a rationale or
interpretation of the statute rather than a causal account of it. There are two kinds of
realist theories of legislative intent: aggregative theories, which legislative intention as an
aggregation of the actions and intentions of the individual members – perhaps those of
the majority that prevailed in a particular vote or that of the “median voter” if one exists –
and holistic theories, which see the legislative intentions as irreducible to individual
actions or intentions.
According to an aggregative theory legislative intentions tend to be incomplete,
incoherent and therefore irrational. Such a theory may be able to explain a statute, in the
sense of showing why it was enacted or took the shape it did, but it generally cannot
explain it as intelligible: as the action of an intentional agent. By contrast a holist theory
sees the legislature as capable of having an intention of the kind that (rational) individuals
4
The text of the statute, which was produced by that legislature, is another matter. Any theory of
legislation – normative or positive needs to take account of text as both something that is fought over in the
3
do. Of course, unless there is some reason to believe that a “real” legislative intention
exists played a role in shaping the legislation, it would be hard to see a holist account as
realist.
Ontological doubts of this kind have led some to argue that the only plausible
candidates for a holist idea of legislative intention are interpretive.5 Interpretive which
“construct” legislative intent as the best explanation of the legislative materials (text,
history, applications, etc.) are often informative and sometimes indispensable for courts
and agencies faced with applying a statute. But, this kind of interpretation lacks a certain
kind of force unless it is claimed that that intention actually existed and was the reason
the legislature enacted the statute. But such a claim is realist and not simply interpretive.
I shall argue that there is a plausible realist construction that can play the appropriate role
in shaping statutes as well as providing later interpretations of them. The idea is to see
statutes as the plans of a continuing intentional agent aimed at coordinating future
actions.
There are reasons – grounded in democratic norms -- that notions of continuing
legislative intentions of the kind discussed here may be resisted. Legislatures, for
example, are not supposed to be able to bind their successors.6 The idea that new
legislation could be constrained by previous legislation ways seems undemocratic in
interfering with the capacity of the present generation to govern itself. While I think
there is something to this belief, it is often too crudely stated to be correct.7 In any case,
legislature and as having constraining effects on what the law can be subsequently.
5
One could also imagine an instrumentalist aggregative view. Such a view may have scientific value I
suppose in permitting the attribution of intentions to members or coalitions.
6
Formal precedents that govern how a legislature conducts its business are often important of course. The
procedural rules of both the United States House and Senate are often found in precedents.
7
In the areas of taxes and appropriations Congress frequently sees itself as bound by its previous
commitments. This is also the case with government contracts. Legislative “entitlements” represent,
4
my construction sees the current legislature as having the intention so there is no sense
that the current legislature is constrained. Indeed, legislative intentions do not generally
bind by constraining a future Congress from taking some action. Rather, these intentions
are a source of reasons for action, in just the way that a person’s intentions provide
reasons for her to act in a certain ways.8 The power of intentions to shape actions is
normative in that sense.
Some idea of collective intent seems required to make sense of the idea that “we”
– as a nation and perhaps each of us -- have ongoing (normative) commitments to certain
policies, and that these commitments arise (partly) from the fact that those policies were
intentional policies adopted by “our” legislature. These commitments are formed in
circumstances of conflict and disagreement and their content and scope are often
politically and legally controversial.9 The language of collective intent is familiar in the
usages of the Supreme Court: someone writing an opinion typically refers to what Awe@
or Athis Court@ decided when referring to decisions a century old (and with which the
current opinion writer may disagree). The idea is that those previous decisions establish a
continuing policy of the Court itself that is (normatively) binding on its current members
in any similar case.10 For a court, this is not a mere manner of speaking, but a
recognition by members of the current court that they have duties to present the court, as
perhaps, a weaker sense of bindingness since Congress does sometimes adjust entitlements. For a detailed
treatment of this issue see Eric Posner and Adrian Vermeule, Legislative Entrenchment: A Reappraisal,
Yale Law Journal , volume 111 (May 2002), 1665-1705.
8
If you intend to drive to the store from your house, that intention gives you reasons to get in the car, back
out of your driveway, turn left or right at various intersections. You could refused to do these things but
then the chances are you will not fulfill your intention.
9
This is not to minimize the role of judges or agencies in construing statutes but only insists that they
ought to see a statute as intentionally directed and try to construct or recover the relevant intentions when
applying the legislation.
10
While the notion of the Court, as a multimember body, acting as an intentional agent may be familiar, it
is no less mysterious, in the terms of this paper, than the idea of a legislature having an intent.
5
a continuing body, as a unified agent acting over time, capable of offering to possible
litigants a coherent account of their legal rights and duties. The notion that horizontal
precedent has binding force on the current court is a normative claim. It is an expression
of the particular ethical notion of how a judge on a court operating over time ought to
behave. I argue that similar commitments and concomitant supporting norms can be
traced in the legislature as well.11
No-one could plausibly defend an intentional theory of legislation unless statutes
normally displayed some degree of coherence. I shall argue that there are some grounds
for this belief: members have normative reasons to try to make their statutes coherent
and, if they can resolve some difficult coordination problems, one can expect them to be
relatively successful in doing this. Coherence may therefore be brought about in the
course of deliberation. Deliberation will not, of course, always succeed in producing
coherent legislation. Coherence is one value and is in conflict with others and any
particular statute may be imperfect in this regard. But, it is an especially important value,
and I expect that legislative deliberation will normally give it a great deal of weight. The
theory of legislative intention developed here is in this respect a theory of democratic
deliberation.
An Example
The issue may be illustrated by the recent debate over how to reform the social
security program. The Social Security Act of 1935 arose out of a deliberate campaign by
President Roosevelt to persuade Congress and the people to embrace a new program for
economic security – one that would create a new kind of economic right or entitlement to
11 Kornhauser and Sager, in a recent article urge caution in comparing courts and legislatures in respects
under discussion in this paper. Lewis Kornhauser and Laurence Sager, “The One and the Many: Integrity
6
income during retirement. He explained the need for the provision of a new economic
right which he said were made necessary by structural changes in the economy
undermining the capacity of families to support their older members. He established a
commission made up mostly of economists and insurance experts to come up with a
legislative plan which produced a blueprint for the new program. His congressional allies
engaged in extensive congressional debates aimed at crafting and justifying the new
legislation which was then enacted. Subsequently, Congress revisited the program
several times (most notably in1939, 1950, 1972 and 1983) to amend and usually to
expand it, as well as to make its promises more credible and secure. Each revisiting was
predicated on the notion that the United States had undertaken a long term commitment,
in the Social Security Act, to provide certain kinds of “guarantees” its citizens that would
enable them to plan their lives, and that it (the Congress) recognized an obligation to
ensure that the program was structured in a way to redeem the promises it made in the
Act.
Changing external facts arising from demography and fiscal constraints, as well as
from the automatic cost of living adjustments in benefits formula have made social
security reform more pressing . Republicans, especially in the House of Representatives,
have long been encouraging leaders to push for reforming the original program by
introducing private accounts that would be “owned” and perhaps controlled by
individuals. On its face, a system based on private accounts seems to depart from the
social insurance principle of the traditional system. Should we therefore understand the
position of the Republicans in this debate as simply a call to put an end to the social
security program altogether and put some new program in its place? Or, should we see
and Group Choice in Paradoxical Cases, “ Philosophy and Public Affairs, vol 32 (2004) 249-276.
7
the Republicans as proposing private accounts as somehow fitting in with longstanding
congressional intentions and merely proposing a more efficient set of means to achieve
it? On the latter account, Republican proposals for private accounts would be offered as
a better interpretation of an abstract congressional intention to provide retirement income
as applied to modern conditions.
This posture – framing the argument as one about ongoing congressional
intentions – offers powerful rhetorical leverage. It sees advocacy of a policy as an
argument about the content of an ongoing commitment. Advocates of private account
seek to persuade those who believe that congress is committed to social security by
making arguments that they could embrace and accept without abandoning this
commitment. Conversely, defenders of the current system can oppose this interpretation
of collective intentions either on the grounds that it is insincere, or else that it fails to
assure adequate guarantees of security and is therefore inconsistent with longstanding
congressional intent. That is to say, they reject the notion that private accounts would be
a better interpretation of the congressional commitment to provide adequate social
security to everyone. Thus, for supporters as well as opponents of the proposed reform,
the argument centers on congressional intentions or commitments.
2. Two Conceptions of Group Intentions
Like individuals, legislatures need to decide what to do. They are large and
complex organizations which are distinctive in having little control over their
membership, but they need to coordinate the actions of their diverse members through
time in order to gather information, make decisions, and take action. The actions they
8
take are not usually self executing but rather establish programs and policies that extend
through time and which have the aim of coordinating the actions of millions of other
people, among them judges and executive officials. Statutes, on this view, are plans for
the future, and legislating amounts to deliberating about plans.
This conception of deliberation arises from seeing the legislature as a “planning
agent.” According to Michael Bratman, deciding what to do – practical reasoning –
generally ends in settling on an intention to take some course of action. To form an
intention to do something is to commit to a plan of action that may need to be developed
or “filled out” over time. According to Bratman to intend to do something is, in effect, to
adopt a partial or skeletal plan that will eventuate in the intention being realized. As time
goes on a planning agent acquires new information and, normally, tries to fill in partial
plans to which she has committed in light of these new considerations. A planning agent
may decide to modify her plans later on or even abandon a previous intention (and
associated plan) because its demands turn out to be too arduous or because its fruits come
to seem less attractive. But abandoning plans to which one is committed is a serious step
not usually undertaken lightly.12
Legislatures are different than ordinary planning agents in some respects: internal
partisan divisions are both legitimate and sharp and are even institutionalized in various
ways. Moreover, an electoral result can give the legislature a special reason to abandon
plans. But, if anything, the coordination value of plans seems more important for a large
multiperson institution than in is for an individual. Moreover, it is in the business of
making norms binding others, the legislature has a special stake in making clear and
12
Michael Bratman, Intentions, Plans and Practical Reasoning, Cambridge: Harvard University Press,
1987.
9
stable rules capable of guiding behavior. For that reasons a legislature has especially
strong reasons to make plans and keep to them not only as a way of organizing its further
actions and deliberations, but also to coordinate the actions of others to whom it can
direct commands (judges, state officers, ordinary citizens). A legislature that regularly
gave up its previous commitments would not only be disorganized and ineffective at
decision making but it would also command little obedience. So there is good reason
think that legislative deliberation can be understood as planning activity, that statutes are
(incomplete or partial) plans with an intentional aspect, and that subsequent legislators
are obliged to see themselves as participants in filling out incomplete statutory plans.
To allege that legislatures are planning agents is to claim that it can act in some
respects as an agent or person so we need to have an account of how this is possible. One
approach, exemplified in work by Michael Bratman, develops a conception of shared or
group intentions from the “ground” up in the sense that group intentions are constituted
by appropriate configurations of personal intentions of their members. On his account
group intentions are not regarded as actual Amental@ states of a group but are
configurations of mental states held by group members. Thus, while group intentions
(like individual intentions) are propositional attitudes they are not themselves mental
states of an agent; rather, they correspond to complex combinations of the mental states
of the group’s members.13 This construction has the virtue of being “ontologically
conservative” in that there are no new autonomous entities such as group minds. But, is
“Shared intentions are intentions of the group….. what they consist in is a public, interlocking web of
intentions of the individuals.” (Bratman, Faces of Intention, Cambridge: Cambridge University Press, 1999,
p.43. Thus, as with the social choice theory account, Bratman=s theory reduces group intentions to
individual intentions but the kind of reduction is not aggregative in the sense of social choice theory B at
least not obviously so -- but constitutive.
13
10
not clear that his construction can work for large and complex groups such as
legislatures.
A joint or shared or group intention (I shall use these expressions
interchangeably) is different from a personal intention in the following way. We can
understand personal intentions as intentions to Ado@ something. This formulation takes
account of the fact that one can only intend to do something that one is able to
accomplish B at least in more or less normal circumstances (assuming you are not struck
by lightening, etc.). But Bratman wishes to avoid introducing a wholly new entity B for
example, a group that can form intentions in just the same way that individuals can B and
so he connects group intentions to more basic individual intentions.14 There some
complications for group intentions: individual members cannot normally form ordinary
intentions – intentions “to” X – on behalf of the group because individual members are
not normally in control of a group’s actions in this way. But a member can intend Athat@
the group take some action, where having a “that” intention requires the individual to do
her part in bringing about X. And, in Bratman’s account, if members have the right
combination of “that” intentions then the group will have a shared or group intention.15
Intending Athat@ will involve the same kind of constraints as intending Ato@ does.
These constraints, arguably, follow from features of planning agency. Thus the principle
of agglomerativity implies that a group member cannot (knowingly) intend that the group
achieve two contradictory results, and so the group itself cannot have a shared intention
to achieve inconsistent objectives. Group members can of course want or wish that the
14
Whether individual attitudes are rightly thought to be simpler or more primitive is a controversial matter.
AShared intention, as I understand it, is not an attitude in any mind. It is not an attitude in the mind of
some fused agent, for there is no such mind; and it is not an attitude in the mind of either or both
15
11
group to do inconsistent things but intention cannot have this feature. Moreover, group
members cannot have intentions that the group do a thing that the group cannot
(normally) bring about and so shared intentions seem subject to further practical
constraints in the same way that individual intentions are.
In addition there are vertical relations among shared and personal intention and
actions. If I intend Athat@ we (our group) do x, I would, normally, have appropriate
personal intentions to do my part in bringing x about. Or at least, I must be disposed to
form such personal intentions along with others in order that the group=s intention (my
intention that) be realized. The part I am to play in the plan has to Amesh@ with the plan.
And you would have to have similar individual intentions to do your part.16 Meshing also
requires that both of us will feel normative pressure to bring our other plans into line with
our shared intention. Finally, in some way, we must each know that these considerations
are satisfied.
Bratman=s formal account of shared intention goes like this. 1. I intend that we X
and you intend that we X. 2. I intend that we X by means of 1. (including meshing
subplans of 1.). And, you intend that we X by means of 1. (including meshing subplans
in 1.), and 3. All this is common knowledge between us. An important aspect of this
definition is that it defines shared intention in terms of a complex interlocking set of
individual attitudes (intentions and beliefs). Moreover, shared or group intentions require
unanimous personal intentions Athat.@ This condition implies that properties of shared
participants. Rather, it is a state of affairs that consists primarily in attitudes ... of the participants and
interrelations between those attitudes.@ (Bratman, Faces of Intention, 122-3.
16
What Amy part@ and Ayour part@ amount to is a complex issue. Our parts may be fully specified in the
partial plan in some cases. In others there may be some background idea of fairness that would play a role
in determining what our individual obligations are. I owe this observation to Seana Shiffrin. Liam
Murphy=s work is relevant here.
12
intentions Ato@ B including coherence properties B will be inherited from the properties
of the individual attitudes.
Thus, Bratman=s definition of a shared intention seems delicate precisely because
it requires that an elaborate set of interlocking attitudes of beliefs and intentions must be
held by the group’s members. In larger and more complex groups, it is difficult to
believe that such conditions could be achieved very often or at all. So, some writers have
attempted to relax these conditions somewhat while keeping the idea of shared or group
intention. This may be a fruitful path. Scott Shapiro, for example, has sought to weaken
both the unanimity condition and the common knowledge condition for shared intention.
This may be a fruitful idea but one problem with it that the coherence of shared intentions
will not follow from the coherence of the constituent personal attitudes. Moreover,
insofar as his modifications stay Anear@ to Bratman=s theory, it is not clear that
Shapiro’s approach will permit the formation of very many shared intentions.
Other theorists think that shared or group intentions are not reducible to individual
intentions in the way that Bratman others seek to do. Margaret Gilbert argues that shared
intentions are like agreements, though these Aagreements@ are implicit in many
circumstances. That shared intentions are virtual or implicit agreements introduces two
new features. First, Gilbert thinks that the creation of a shared intention entails the
creation of something she calls a Aplural subject,@ an entity that can have intentions in
just the same way that individuals can. The intentional attitudes of this subject are
somewhat independent of those of its constituent members. Second, in the relationship
between group members of a plural subject, an additional normative element enters the
picture; something like obligations to keep “agreements@ with others. I think that these
13
two strands are separable but that each is compatible with a kind of “realism.” The
ontological account envisions a new psychological entity which could, presumably enter
into causal interactions with things in the world. The second, normative, account would
permit a different kind of normative realism presenting reasons for action rather than
causes. It is this second idea that I will explore here.
As I understand her argument, for a group to Aagree,@ in Gilbert=s sense, to form
a plural subject, there must (already) be a convention to mark what counts as Aagreeing.@
Her story about how two people come to be walking together describes a kind of
elaborate signaling ritual in which separate walkers converge (perhaps wordlessly) on a
joint commitment to walk Atogether@ and not merely in parallel. In the case of a two
person interaction, such conventions operate implicitly and probably have the feature that
forming a plural subject requires unanimous assent. We are not walking together unless
both of us have somehow committed to walking together. Gilbert=s shared intentions,
once formed, are autonomous from the mental attitudes of group members. Two people,
walking together, constitute themselves as a Aplural subject,@ capable of having
intentions and other mental states, and capable of responding to new circumstances as
any rational agent would.
In larger and more complex organizations things are different. We cannot
generally expect to have implicit background conventions that would permit all of us to
recognize when we have acted as a plural subject. Moreover, the formation of an
intention by a plural subject cannot plausibly require unanimous agreement or anything
as strong as Bratman’s meshing condition. We should expect that, in the case of larger
groups, more formalized norms will be relied on to describe the circumstances in which a
14
plural subject has been acted. A large corporation for example can be committed to a
course of action by acts of its CEO or of its Board of Directors. Legislatures, our
example, can take action through their formal rules for proposing and accepting proposals
which usually require the assent of only a part of the body. Still, Gilbert would think the
actions and policies of a corporation or a legislature are the acts of plural subjects.
Bratman and Gilbert agree that joint intentions put normative pressures on the
actions and intentions of the group members. Bratman thinks this pressure is weak in the
sense that it is grounded in the same kind of stabilizing or coordinating force that exists
for individuals as planning agents. If you and I have a shared intention (and have adopted
a partial plan) to X, then that gives us reason to coordinate our actions and intentions on
pain of being indecisive or inconstant, or perhaps of acting suboptimally in disregarding
our cognitive limitations. Gilbert argues that additional and stronger kinds of
interpersonal obligations come into play at the group level, so that failing to keep up our
part of a joint intention essentially involves failure to fulfill the obligations that arise from
the shared intention itself.17
The plural subject view offers the prospect of a realist conception of legislative
intent. Plural subjects, on Gilbert=s account, have genuine intentions and these
intentions are autonomous from the intentions of group members. Gilbert’s conditions
may trigger worries about ‘realism.’ Shared intentions are supposed to be mental states
and such states are supposed to require minds, and perhaps minds require brains.
Bratman’s solution is attractive precisely in that shared intentions are seen as (complex
17
One of Gilbert=s criteria for identifying a joint intention is the existence of obligations (or at least a sense
of obligation) to pursue and help the others in the group to pursue the joint intention. These obligations
have something of the same force as the obligation to keep promises. Even so, if such obligations conflict
15
configurations of) individual mental states, and those (individual) states are linked to
brains in the ordinary way. Gilbert’s view breaks the link between group and individual
mental states and so it raises questions about the status of group mental attitudes and
indeed about group minds. She could argue that positing group minds is objectionable
only if group minds are considered to be very much like individual human minds. But
group minds may simply lack much of the power of human minds and simply be places
where quite sparse and primitive mental attitudes are housed.18
In any case, the intentions of a plural subject are supposed to respond rationally to
other group attitudes, desires and beliefs, in more or less the ways that individual
intentions: we expect a plural subject’s intentions to be rationally related to its beliefs and
desires. But, whatever it is that regulates the relations among group mental attitudes may
be very different than the processes that work for individuals. That regulation may work
through normatively guided social processes rather than neurophysiological ones. If that
is right, Gilbert’s group intentions lack some key features of individual mental attitudes.
They are not realized any kind of neural machinery and they may lack what might be
called “subjectivity” in the sense that the group as such may not have any privileged
access to them in the way that ordinary individuals might be thought to have special
access to their own attitudes. More importantly, the way that group and individual
intentions interact may be completely different from the way individual intentional
attitudes do:” normatively rather than chemically.
with individual intentions or other commitments, such obligations might be overridden, even at the price of
having to suffer rebuke from other group members.
18
For an exploration of these issues see Philip Pettit, ‘Groups with Minds of their Own’ in Frederick
Schmitt, ed., Socializing Metaphysics, Rowan and Littlefield, pp. 167-93.
16
Because Gilbert’s group intentions are not reducible, as Bratman’s are, to
complex sets of individual mental attitudes, and are built instead on the public actions
(virtual “agreements”) of the members her theory seems to offer a plausible basis for a
realist theory of legislative intent. Her “agreements” could be realized both through
institutionalized rituals such as votes in a legislature as well as in the less formal ways
she discusses. Moreover, her idea that group intentions are the intentions of an
autonomous subject forces us to ask how it is that group mental attitudes are made
coherent. Specifically it requires us to focus directly on the normative (rather than
constitutive) relationships among group members and the intentions of their plural
subject. That is, it permits us to ask directly about the normative obligations group
members may have to help the group pursue its purposes. These features make the notion
of a plural subject a plausible grounding for a realist notion of legislative intent.
A digression on collective rationality
There are reasons to be skeptical about group or social rationality: the idea that
groups could have intentions that are similar to those we think individuals’ have. The
results of social choice theory are usually taken to demonstrate precisely this: that
decision procedures commonly used in legislatures and electorates (and multi-member
courts) cannot be counted on exhibit coherent patterns of decisions in all circumstances in
which they are supposed to operate. Empirically, generations of political observers have
argued that public policy is best understood not as intentional action but as a record of the
outcomes of sequences of group struggles. Coherent intention on such views would only
be expected if very unusual conditions happened to obtain.
17
I think the results of social choice theory are less subversive of the notion of
legislative intention than the above remarks suggest. Indeed, the theory provides some
guidance as to how coherent collective outcomes could be brought about within, for
example, an institution that made its decisions by majority rule. Suppose the members of
the collectivity place a value on coherence and were willing to sacrifice achievement of
other values to bring it about. In that case processes of deliberation and compromise may
induce people to modify their initial preferences in ways that reduce the heterogeneity of
post deliberation preferences. This reduction in heterogeneity may be sufficient to permit
a decision rule to produce coherent social judgments. I shall explore a version of this
idea below. But there are other ways too: legislators might, again as a result of
deliberative consideration, decide to require supermajorities or even unanimity to take
action (even though the formal rules permit action by mere majorities) as, for many
purposes, the United State Senate does in conducting its ordinary legislative business.
This too can produce coherent collective preferences according to results in social choice
theory. There are other ways as well. The point is that social choice theory ought not to
be understood as undermining the possibility of coherence and therefore collective action.
Indeed, that theory shows how it is that such coherence may be achieved.
3. Plans and Planning
AWe,@ says Michael Bratman, Aare planning agents.@ Bratman thinks the
Aristotelian account of action – in which actions are chosen to satisfy desires in light of
beliefs -- is inadequate to describe how we deliberate about what to do. Rather, he thinks
that we formulate intentions, and as part of forming an intention, we commit to a course
18
of action or plan, or, even more usually, on a partially specified course of action: a partial
plan. Thus, Bratman thinks not only that there is something that comes in between beliefs
and desires on the one side, and action, on the other, but that this something can be
described either as an intention or as a partial plan.19
Thus, at some (early) point in practical reasoning we adopt or posit an intention to
do something. We might intend, in one of Bratman’s examples, to present a paper at a
professional meeting in Boston in October. In adopting this intention, we have already
(at the same time) adopted a partial plan to arrive, somehow, at the meeting in Boston on
the appointed date. This plan may be very incomplete: it may not for example involve a
commitment, yet, to go by plane or train, to buy the appropriate tickets, to arrange for a
trip to the airport or train station, etc. Still, the intention itself already involves a part of
plan: to arrive in Boston on the appointed day, with a paper to present. As we go forward
in time, assuming that we retain the intention, we are moved, somehow, to fill in the
partial plan by planning on doing the required things to make the intended state of affairs
come about.
So, Bratman sees planning as central to deliberating over what to do and we do it
because it helps us to coordinate our activities. Partial plans represent commitments to
courses of action and they provide reasons that enter into or choice of actions over time.
Plans are relatively stable in the sense that we do not constantly reconsider them as our
beliefs and temporal location changes; if we did so, plans would not help us coordinate
19
Bratman partly grounds the idea of planning on limited cognitive capacities. By adopting a partial plan
early in the deliberative process, the complexity of the decision problem is reduced. And, because this
simplification is valuable, an agent will have reason to hold onto a plan even if there is some evidence that
the plan is suboptimal. Bratman recognizes other reasons for sticking with a plan rather than jettisoning it at
the first sign that it is not the best possible course of action.
19
our actions and intentions over time. And because they are relatively stable, plans help
us to structure our further deliberations by permitting us also to consider a manageable
set of options (train, plane, boat) to decide among.20 They also make our future actions
more predictable both to ourselves and to others. Knowing that I intend to be in Boston at
the professional meeting, helps me to make other decisions about how to spend my time
(writing the paper, etc), and permits others who may want to see me to form their own
intentions. Plans help, in these ways, to coordinate or organize our deliberations over
time. Importantly, plans exert normative or critical pressure on our actions and on our
other intentions and actions: if I plan to go to Boston, there is reason for me to decide
about mode of transport, to see to getting the tickets, etc. I can, of course, abandon my
plan so this normative pressure is defeasible but as long as my plan remains in place, it
(along with other considerations) generates reasons for action. I want to call this idea
weak normativity to distinguish it from such things as obligations to others.21
Plans are, in some respects, like recipes but they also have propositional content,
in the sense that one plans to do something. Planning do something entails intending to
act in a certain way. I can have a recipe for making bread, and follow its steps
mechanically with no intention to make bread at all. I might simply find it calming to mix
the ingredients and knead the dough and enjoy the smells that emanate from over at
20
On the cognitive limitations view, failure to adopt plans would be a failure of at least second best
rationality. It is not an option to act as though we could plan synoptically, taking every conceivable option
into account, so a refusal to plan would tend to lead us to worse outcomes than those we could achieve if
we took account of our limitations.
21
The authority of our plans over our further deliberations takes the form of exclusionary reasons in Raz=s
sense. That is, if I am considering taking an action and I have adopted a plan that excludes taking that
action, I have a reason to take the plan=s constraint as a reason for not doing the action in question. I do not
look behind the plan for the reasons that led to adopting the plan in the first place; rather, the plan itself
provides reasons for action or restraint.
20
certain stages in the process. The bread would result as an unintended (but forseen)
consequence of my following the steps in the recipe. But, if that is my orientation to the
steps, I am not following a recipe for making bread. The recipe is directed to directed to
making bread and it is this “directness” that is central. Recipes are (partial) plans in this
respect. If I plan to make bread I will have to go through some series of actions that can
be described as a recipe but now I am following the steps with a certain attitude in mind.
Having a plan to do something also seems to entail having a kind of critical attitude
toward my activities and to the plan itself. If I plan to make bread, I should not follow a
recipe blindly, regardless of the circumstances but, if necessary, make adjustments for
humidity and altitude and, perhaps, deficiencies in my oven. And, if conditions are
sufficiently unfavorable I should decide to skip the bread making altogether.
In any case, it seems plausible that groups can have plans in very much the same
way that individuals do; indeed, insofar as interpersonal coordination problems a more
difficult than those faced by individuals, groups have stronger reasons to plan. But group
plans must be connected to shared or group intentions. And there are some new twists
that arise for groups. An important aspect of having a joint or shared intention is that
such intentions, or at least their associated plans, are supposed to fit with the personal
intentions or plans of the group members. This is not the same as Bratman’s meshing
condition but is, rather, a normative requirement that the plans of a group and its
members have to adjust to each other in some ways. If you and I intend that we paint the
house, then as time goes on, at least one of us had better get some paint and brushes and
so make room in our personal subplan to ensure that this takes place. Moreover, if part of
our shared intention is that we paint the house the same color, then our personal plans
21
(which correspond to intentions to) had better be made to mesh or agree so that this
occurs. We might sensibly have a joint intention to paint the house yellow, or blue, but
have no shared intention to paint it yellow and blue.
Bratman thinks that once we have formed a partial plan to paint the house, that
plan then structures a further negotiation over a choice of color. He doesn=t say much
about how this process might proceed. I might simply buy some blue paint and get
started and you, while preferring a yellow house to a blue one, still decide to go along
with my choice rather than painting over my blue with yellow. Or the process could
involve more explicit bargaining and agreement. The point is that joint intentions involve
coherence constraints of two kinds. Joint plans are constrained in the same way that
personal plans are (to be coherent, etc) and, additionally, to fit or mesh with personal
plans of group members (and with other joint plans involving group members). How this
coherence or harmonization is brought about is not specified.
This idea, that partial plans provide a basis for further negotiating, bargaining, and
deliberation, seems especially important for large and heterogeneous groups. Must group
intentions achieve full coherence (horizontal consistency) or must group and personal
intentions fully mesh (vertical consistency)? It would seem to me that in heterogeneous
groups there might be a sense in which coherence remains a goal or aspiration in the
sense that members might willingly forgo full coherence or consistency in order to pursue
other aims. For example, an ethnically diverse group might be willing to tolerate some
degree of inconsistency in order to recognize values important to various subgroups. Or,
to take a more pedestrian example: we might have a policy of subsidizing tobacco
farmers while at the same time discouraging or even forbidding smoking. Such a policy
22
recognizes both the value of a traditional agrarian lifestyle for the farmers whose land
might be suitable only for tobacco cultivation, and a public concern for the malign effects
and addictive qualities of tobacco consumption. Obviously such policy combinations are
vulnerable to criticism from a coherence viewpoint. But it is not clear that it will always
be best, all things considered, to forbid such policy choices.22
A related issue arises when a policy can be explained or justified in terms of
conflicting underlying principles. Here the policy itself, as a partial plan, might be seen
as coherent when viewed in either in two ways: as pursuing goal A or goal B. But these
goals are themselves inconsistent in the sense that each would fill in the partial plan in
different ways. The policy can be seen as a part of a plan to pursue A, or as part of a plan
to pursue B. The adherents of each these interpretations will argue that their principle
gives the better explanation or justification of the policy and therefore, gives the better
reasons for how the plan should be completed. As long as the underlying issue remains
unresolved, the authority that the plan exerts on future actions will remain controversial.
What then is the force of coherence on shared intention? Bratman=s house
painters suggest two different kinds of force or pressure. First, if no-one undertakes to
get the paint and brushes B if no one forms the personal intentions to do her part -- there
may be a sense in which we do not have a joint intention that we paint the house. We
each may wish that we paint the house but nothing is set in motion that leads to the
implementation of this wish. Let=s call that a constitutive constraint. A second source of
constraint is perhaps more interesting in that it arises from the desires or values of the
group members. We could, sensibly, paint the house both blue and yellow, but if each of
22
These examples are supposed to illustrate aspects of value pluralism circumstances of tragic choice that
may prevent either groups or individuals from acting with full coherence.
23
us prefers either a blue or yellow house to a multiply colored one, there is a reason for us
to bargain or negotiate over the color so that we can decide on a single color plan. We
can call this a regulatory or normative constraint.
I don=t think that it is necessary to assume that the direction of these normative
forces is fixed. A normative constraint arising between a shared intention and the
personal intention of a group member requires only that one or the other intention give
way B at least a little. Which intention is to be altered or abandoned is another question.
If a joint intention requires, for example, that one of the group members act immorally,
the pressure would probably be to reinterpret or abandon the joint intention.
4. Legislative Intentions
We return now to the main object of this paper: legislation. A legislature is a
group authorized to produce coercive rules that regulate behavior. When we turn away
from Bratman’s two person problem and consider the circumstance of legislation we need
to confront several new issues. Members of a legislature are not required to agree with
each other, even after long argument, in order to decide what to do. A legislature may
decide, or adopt a plan, even if only a bare majority of its members vote for it. Is there,
in this case, a plausible sense in which we could say that the legislature itself has adopted
a plan? Or, is the most we can assert is that the majority – those who have voted for the
successful proposal – has adopted a partial plan and has, as well, a shared intention? If
only this last claim is true, then must we say that the members in the minority may have
no reason to see the statute as having any normative claims on them.
24
Bratman’s view of shared intentions – because it sees those intentions as identical
to a complex of individual intentions – seems vulnerable to this worry. It is hard to see,
specifically how anything like his “meshing” condition can be expected to hold in a way
that involves the minorities intentions.23 And, if that condition fails for the legislature, it
is hard to see how members of the minority have reason to see a statute as in any sense
“their” plan. For this reason, I am inclined to reject the meshing condition, as a
requirement for the formation of legislative intention and instead pursue Margaret
Gilbert’s notion that shared intentions may be formed under weaker conditions; perhaps
by the occurrence of certain formal actions, such as a procedurally legitimate vote to
enact a statute, rather than requiring the existence of a complex set of individual
intentions.
It is important to see that the close connection between plans and intentions is
maintained for groups: when the legislature agrees to a statute, that statute constitutes a
partial or incomplete plan of what the government is to do, and that partial plan
corresponds with a shared intention. This shared intention is an intention the legislature
itself, in virtue of its rule for making binding decisions, and not that of a mere majority.
And as an intention of the legislature, the statute imposes normative pressures on all
members whether or not they supported the statute initially. I do not mean to argue that
any member of the legislature has reason simply to support any particular statute enacted
by the legislature or to resist limiting or even overturning it. Under some conditions
legislators are right to reject or radically alter previously enacted laws. Rather, I want to
make weaker claims that arise from the arguments for coherence introduced previously:
23
This may simply be a failure of my imagination: for a meshing condition to hold in a majoritarian body
would seem to require that the interlocking individual mental states be a combinatorially complex
25
that the existence of conflicting patterns of legislative action – such as statutes mandating
X and not X or, in the present case, a statute which cannot be given a coherent
justification – gives legislators reasons to make adjustments to reduce or eliminate those
conflicts. These reasons follow from the principle that people confronted with coercive
commands are entitled to be shown how those commands are reasonable: specifically that
they are the commands of an intentional agent. The adjustments required are to be a
matter for legislative deliberation.
5. Legislative Deliberation
In this section I shall explore the deliberative implications of planning and
specifically of a legislature taking the demands of coherence seriously. I do so by
exploring a simple example, chosen to illustrate a circumstance in which the achievement
of coherent legislation is costly to the members in an important sense. The members
wish to present the legislature as having a coherent policy of the kind that a unified agent
could rationally adopt, but achieving coherence entails giving up other things of value. It
is meant to be a model of planning: the legislature is operating with an existing plan and
is deciding whether to alter or perhaps to abolish it. The members disagree as to whether
the existing plan is viable so at least some members are open to taking radical steps. But
others disagree. The example is very simple: there are only three members in the
legislature and a restricted number of issues and alternatives. It is, however, possible to
extend the reasoning to more complex situations.24
disjunction of individual intentions, where each element of the disjunction is a legislative majority.
24
For a more developed argument see John Ferejohn, “Conversibility and Deliberation”
26
In the example – a stylized picture of the current debates about social security –
there is a conflict between the members acting as rational agents and group acting in that
way. Such circumstances may seem quite special but they allow us to see if the planning
perspective helps understand what kinds of reason are available for guiding legislators
when such choices must be made. I chose the social security debate partly for its
contemporary familiarity, partly for the recognition on all sides of the importance of
taking a long term view, and partly because, leaving aside the eligibility issues, it is
nearly a purely legislative program. Judges have had no role in setting benefit levels or
tax rates or any other important aspects of the program. The Supreme Court was asked
whether the program was constitution and they agreed that it was. Except for that,
everything has been up to Congress. If coherence or integrity are to play any role at all,
they must be applied legislatively rather than judicially.
Consider the following hypothetical pattern of judgments about social security
reform.25 Member A thinks the current system is bankrupt but doubts whether private
accounts will work.26 She may think that they will be too expensive or will result in
unacceptable risks to some. Member B doubts that social security is in fact bankrupt, but
is optimistic about private accounts, thinking them somehow a feasible way of providing
adequate guarantees of financial security. And C thinks both that the current system is
bankrupt and that the proposed new system is workable in the sense given in the previous
This arrangement of the debate into an issue structure is admittedly not “given” by the record but
represents a simplified version of the deliberation.
26
The private accounts proposal must be packaged with associated benefit reductions and tax increases.
Such accounts may be said to work if they are fiscally feasible and if they provide “adequate” guarantees of
financial security. In other words “work” in this context is interpretive in that it includes some notion of
what such adequate guarantees would require.
25
27
sentence.27 I assume, for the sake of argument, that a member would favor adopting
private accounts only if she accepted both premises, as C does.28
Table One:
SS “bankrupt”
Private accounts work
Adopt Reform
A.
Yes
No
No
B.
No
Yes
No
C.
Yes
Yes
Yes
How might deliberation proceed in the circumstance described in Table One?
One possibility is that the members simply vote on whether or not to adopt the reform.
Presumably, member C would vote for the reform, while neither A nor B would; both are
skeptical about one of reform’s supporting premises. We call this way of deciding
“results oriented” voting. Note that if the information in Table One were to be revealed
during the debate, or if the legislature were actually to take public votes on the premises,
the majority outcome (rejection of the reform) would be unsupported by majority views
on each of the premises – there are majorities in favor of the proposition that social
security is bankrupt and that private accounts are workable. Indeed, we can imagine
another way of proceeding: the legislature could take votes on the premises and then,
decide on the result in the way consistent with the vote on the premises. Philip Pettit
calls this procedure “premise oriented” and notes that it has the virtue of picking an
Preference distributions of this kind have been called a “doctrinal paradox,” by Lewis Kornhauser and
Larry Sager. Philip Pettit terms them instances of a “discursive dilemma.”
28
This assumption is certainly challengeable: a member could vote for the reform if she thinks it workable
even while thinking that the current system is not bankrupt. I ignore that possibility here. I suppose one
could claim that this exclusion could be justified on the basis of a kind of political rationality: that
proposing to replace the current system that appears to be working well enough and on which people have
relied is so politically costly that no representative would try it.
27
28
outcome that is supported by majority endorsed premises. Indeed, if its members were
concerned to produce this kind of coherence, one could even imagine the legislature
committing self by formal rules to doing business in the premise oriented way.29
I preface the analysis with a few remarks. First, examples of this sort of
“dilemma” depend on the use of a nonunanimous decision procedure such as majority
rule of some version of it. Further, the only kind of dilemma that can arise is one in
which the results vote is negative, while the premise based votes are all positive. One
interpretation of this is that under results voting the “status quo” (no change in the
program) is privileged relative to the premised based outcome. Third, the status quo
“bias” would be even greater had the affirmation of more premises been required for an
affirmative premise based vote. And finally, this implies that one way of resolving the
dilemma -- increasing the required majority for assent to the premises – would further
increase the status quo bias.
Another feature of the pattern of judgments in Table One is that each member is
“pivotal” to the pattern of outcomes: there is a way she could change her votes so that the
pattern of outcomes would become coherent. If member A were convinced that social
security is not bankrupt, the vote on that premise would then switch to negative, as would
the collective judgment on the premise, which would support the negative outcome.
Similarly, if either of the other members had a different view of one premise the dilemma
would disappear. Thus, in this example, each member is “pivotal” to the dilemma. This
suggests a sense in which each member can be thought of bearing some kind of
29
Nothing in my argument depends on the preference based procedure but only the broader class of
procedures that force the pattern of collective choices to be coherent: in this case, deciding on any two
issues would determine the outcome of the third.
29
responsibility for the overall outcome in the sense that if she could be persuaded to
change her views on one issue, a coherent result would be produced.
I distinguish two models of deliberation: pure and impure. In pure deliberation,
the group deliberates about all of its judgments in a symmetric way, giving no priority to
judgments about one issue over another, nor to the final result over the issue. The aim is
to produce a coherent and acceptable pattern of outcomes – to get things to fit together -and, in this process, each of the group’s judgments is on the table for reconsideration.
This is a process of reflective equilibration. There may be substantive reasons why it is
more difficult to adjust some judgments than others – some beliefs for example may be
tethered closely to empirical evidence for example -- but such considerations are invisible
at the formal level. In any case, each of the judgments that must be made in these
examples embody important normative judgments as well as factual ones. The judgment
that the current system is bankrupt is offered as a reason to do something to correct or
reform it. The judgment that private accounts are workable implies that such a system is
financially viable and that it would constitute an adequate substitute for the current
system of providing social security.
Impure deliberation proceeds sequentially, first fixing its decision on one issue
first and then taking up further issues in sequence without reconsidering the initial
decision. In Table One, the legislature might decide to fix its collective judgment,
irrevocably, on the first question on whether social security is bankrupt, and then
deliberate about private accounts without revisiting the previous decision. Proceeding in
the impure way corresponds roughly to an “institutional” resolution of discursive
dilemmas: the structure of the procedure guarantees a coherent pattern. It seems clear
30
enough why such a deliberative procedure would be called impure. There is a sense in
which there has been an arbitrary closing of debate on one issue, and a sense that the
discursive dilemma has been short circuited rather than resolved.
Impure procedures may be adopted for reasons of practicality or perhaps for some
other reason relating to the formation of group intention. Members of a group deciding
over time may feel bound by precedent for example. Or, a group may parcel out its
decision tasks to subgroups and each subgroup may feel bound to honor the prior
determinations of other subgroups. The current example doesn’t exhibit this idea, but
one could imagine an appellate court stipulating facts established at an earlier trial as an
example of this sort. So, there is a variety of impure procedures and there are sometimes
good practical reasons to adopt them.
Impure Deliberation
Suppose that the legislature proceeds by using a premise based procedure – first
voting on bankruptcy issue, and then on the workability private accounts, and then
determining the result in view of the premise judgments. But now, rather than taking the
judgments in Table One as immutable, members are free to reconsider them in light of
their effects on the overall outcome. Recall, as these judgments contain normative as
well as empirical considerations, it makes some sense that members would be willing to
reconsider their normative views in light of new evidence or in light of competing
normative considerations such as coherence. How would we expect the members of the
legislature to deliberate and vote in light of the sequential procedure specified above?
One way to proceed is to assume the member are sequentially rational in
expressing their personal judgments, which means that at every point in which a member
31
needs to make a decision, that decision must be best for her for that point on. Members
are free to alter their judgments or results in light of earlier outcomes, so we need to
specify the ways in which they may do this. For a start, let’s assume that the legislators
are more committed to their views as to the final outcome – whether the private account
system ought to be adopted -- than they are to their judgments about the premises. In this
case, the final decision (on the workability of private accounts) is to be taken after the
issue of bankruptcy is resolved. And so each member would see that if the legislature has
decided affirmatively on the bankruptcy issue, the overall outcome will turn on how the
vote goes on whether private accounts are thought to be workable. On this issue,
members B and C are pivotal in that if either is be persuaded to changer her views, the
collective judgment on the premises would be negative. And as B thinks the reform is
unwise, she has a strong reason to reconsider her judgment on this issue. Of course, had
the initial vote (on bankruptcy) been negative no-one would be pivotal to the outcome
and one would not expect much pressure to reassess views on the issue of private
accounts.
So, if the legislature adopts the sequential premise based procedure and its
members are result oriented and sequentially rational in the way assumed here, the
outcome would be to reject the reform and preserve the current system, and there would
be a coherent and public explanation for that result. Note that had the votes occurred in
the other order, the result would have been the same in this respect though the voting
pattern – and therefore the public justification for it – would have been different.
In this example there is no need to consider the question of coherence
independently of the decision itself – the sequential premise based procedure itself
32
guarantees that the pattern of votes will cohere. But, the outcome is the opposite of what
Pettit hypothesizes under premise-based voting. This is not surprising in that we assumed
that members guide their voting on premises in order to try to reach final outcome each
thinks most justified. Had they been more confident in their views about the premises
than they were about the final outcome, perhaps none would have been willing to change
her views on premises and the reform would be adopted.
While I don’t have space to worry the argument out in detail, there is a theorem
here that would have a statement roughly like this: in the conjunctive case, if the pattern
of initial judgments produce a discursive dilemma, sequentially rational results oriented
players (in the sense given above) will always produce premise judgments supporting a
negative result, irrespective of the order of voting. No discursive dilemma will be
observed except possibly at early stages of the deliberative process. The argument would
go as follows: assume that there are k premises and n voters, that the underlying or prior
judgments form a discursive dilemma, and that the premises are voted on first. Then, at a
final node following a sequence of positive premise votes, for each person that prefers a
negative result voting against accepting the last premise weakly dominates voting for it
and, by assumption, this set of people forms a majority.30 Thus the outcome is negative
and there is a coherent justification for it.31 If the result itself was voted as one of the first
k votes, it would fail as there is no premise based reason not to vote initial outcome
preferences in the first k votes. And on every one of the k-1 premise votes the judges are
30
A strategy, x, weakly dominates another strategy, y, for a player, if the result of playing x always leaves
the player at least as well off as playing y, and better off in some circumstance.
31
I think something like this could be established for indefinite procedures of the following kind: voting
terminates whenever a result and coherent pattern of premise votes is reached. Otherwise, it continues in a
fixed order. The resulting extensive form is infinite but has a simple markovian structure. As long as the
voters are (at least a little) impatient, I believe that there will be an equilibrium in which the game
33
free to vote their initial judgments. Only the last premise judgment is to be implicitly
fixed in a way that supports previous votes. What if we assume that the members are
premise rather than result oriented, in the sense of being more confident in their premise
judgments than their views about the outcome? A parallel argument suggests that
members should not alter their initial premise judgments and result will be that the reform
would be adopted.
It may seem that a particular idea of sequential rationality is playing too
determinative a role in these examples. Sequential rationality makes the choice of voting
order inordinately important. And, in any case, the deliberative practices described here
may be troubling if one thinks that the members are voting deceptively: concealing their
own best judgments (on the premises) in order to produce an appearance of coherence.
Perhaps this kind of voting is unacceptable in itself even if the legislator has no invidious
reason for voting in this way. Perhaps that is reason to adopt an alternative maxim: that
legislators ought to stick with their initial premise judgments, and adopt the result that is
required to vindicate those judgments. But why should they privilege their initial
judgments in this way, independently of how deliberations proceed? Perhaps it is better
simply to abandon fixed sequences and try to see how pure deliberation might proceed.
Pure Deliberation
In pure deliberation all the issues – premise judgments as well as the final result –
need to be decided together. I imagine that the legislature would, in effect, take repeated
straw votes on each of the issues and that individual legislators would be invited to
terminates after one round of voting, that it will not “reveal” a discursive dilemma, and that in conjunctive
case the result will be negative.
34
reconsider their judgments in light of the pattern of collective judgments. The pure
procedure seems less institutionally constrained than impure procedures in that each of
the issues are treated symmetrically. The principle of pivotality, introduced earlier,
would help each legislator to see the consequences of changing her vote in view of how
others are voting and would thereby help to focus deliberation. As before I assume that
each member places great value on producing a coherent pattern of results as well as on
getting a good result -- they want their premise judgments to support their final decision - and that they will see a failure of coherence as a reason to continue deliberating.
Is there anything objectionable about the idea of members seeing all of their
judgments, on premises as well as on results, as being in play during the deliberative
process? Each of these judgments are normative judgments as to what the group ought to
do – they are not private regarding in the way that preferences are thought to be -- and,
from a formal perspective, they are more or less symmetrical. And insofar as normative
judgments conflict, there is reason to be open to reconsideration. Moreover, as in the
example, judgments may have empirical contents too: legislators may learn new
information during deliberation that may cause them to reassess their own empirical
views. And beyond these considerations, there may be substantive reasons to insist that
one judgment has priority over the others. One of them might, for example, be dictated
by considerations of morality. These are substantive issues, and perhaps controversial
ones, that would themselves be the subject of deliberation.
We can start by partitioning the set, X, of outcomes into the following subsets:
Let YC be the set of voting patterns that would produce a yes on the result and a coherent
set of premise judgments, NC is a negative result with coherent preference judgments, YI
35
a yes vote with an incoherent set of premise judgments, and NI a no vote with incoherent
judgments. So NI is the set of initial discursive dilemma preferences. We have already
remarked that in the case described in Table One, YI is empty so we need consider only
three subsets. We may suppose that the members have initial rankings of the elements in
X, and that these rankings may be revised or adjusted in deliberation.
We shall say that an outcome xεX is deliberatively unstable if someone may alter
her judgments in such a way as to achieve a preferred outcome or a coherent voting
pattern supporting the same outcome. The first thing to notice is that the pattern of initial
judgments in Table One is deliberatively unstable. Member A could alter her judgment
on bankruptcy from Y to N and thereby produce a coherent pattern of judgments in
support of the negative result. Or, she could change her views about private accounts
from N to Y (and therefore her judgment on the final result from N to Y) to produce a
coherent judgment pattern in support of a positive result.32
It is easy to see that there will always be many deliberatively stable profiles and
so, in a sense, the legislators must solve a “coordination” problem in order to settle on
one rather than another. Each of the different stable profiles reflect a different way in
which the members may adjust their views on the premises and outcomes. And, as the
investigation here remains at a formal or nonsubstantive level, there seems no natural
32
Indeed, this seems to be a general result for a three person group with any number of premises: every
judgment pattern in NI is unstable. The argument would go like this: for any x ε NI, there is at least one
individual who is voting Y on a premise and N on the outcome and whose vote is pivotal on the premise. If
she changes from Y to N on the premise the resulting pattern is in NC which is the better result for her.
But the case of three voters special in that for any profile in NI, there is always at least one player who is
pivotal. If each of the rows in Table One were to represent three judges, none would be pivotal and the
pattern in Table Two would be stable. For this reason it makes sense to require each judge to express her
judgment on a question on the assumption that she is pivotal to deciding it. The presumption of pivotality
is, in this setting, a device for focusing responsibility and organizing deliberation. It does not say what to
do, but it says that individuals, judges in this case, ought to formulate their votes on the assumption that it
36
way to narrow this set of possible deliberative results. In specific cases there may well be
substantive reasons for the legislature to choose one deliberatively stable profile over
another. And, we have said nothing about the dynamics of the deliberative process that
might lead to one particular outcome over others.
The point of thinking through these models of deliberation is to illustrate how
members in a legislative body might try to take considerations of coherence into account.
I claimed that they would be and ought to be disposed to reconsider their initial
judgments in light of the consequences of exercising these judgments. If they do that,
depending other assumptions, legislators will sometimes have reason to modify their
“expressed” judgments in the course of deliberation. I don’t have the space to investigate
the general effects of such deliberations but it seems likely that its effects would be to
diminish the heterogeneity of expressed judgments relative to initial judgments. In the
language of social choice theory, deliberation produces a restriction on domain of
preference configurations.
More to the point, deliberation, if it proceeds in the way outlined here, will tend to
produce a coherent plan and therefore something like a legislative intention. It is
impossible to say in advance what partial plan will emerge from a more or less pure
deliberative process. There are generally many deliberatively stable voting profiles and
which emerges depends on how competing values are weighed. In this simple example,
some profiles support continuing the existing social security program even if a majority
thinks it is unsustainable over time because of bankruptcy. This is at best a partial or
incomplete plan: there is reason for someone to come up with a proposal that could
makes a difference how they do so. And, in particular it makes a different to how the court is able to
present itself to those subject to its decisions.
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ameliorate the fiscal problem by raising taxes or reducing benefits. And the members
would be expected to entertain such a proposal sympathetically in view of the
incompleteness of the partial plan they have adopted. Indeed, it is the incompleteness of
the partial plan that gives the legislature, and its members, reasons to continue.
7. Discussion
The planning perspective is a democratic conception of legislation in two senses.
First, as in traditional theories of representation, legislators receive their rule making
authority in democratic elections and are obliged to represent the peoples’ interests.
Second, making rules that bind others gives rise to a normative obligation to show that
those rules further valid social purposes and infringe on peoples’ rights only in ways that
are necessary to accomplish those purposes. And this explanatory duty is owed to
everyone equally.
These two sets of normative obligations, or at least some interpretations of them,
may come into conflict: a narrow understanding of the duty to represent might direct
legislators to pursue only those views expressed by their constituents and be unwilling to
compromise in this pursuit. But, such an uncompromising posture will require that
legislation is produced by aggregation and this will often lead to incoherent legislation
for which there is no coherent public account. This is a reason to reject such a narrow
understanding of representation and to say, instead, that the legislator’s duty is to
integrate the interests of his constituents with those of the members of the polity
generally. This requires that legislation be directed to further some conception of
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common purpose so that each person (inside or outside the constituency) can be given an
explanation for laws that she can, in principle, embrace as her own.
Therefore, the planning view of legislation sees statutes as rationally directed to
furthering common purposes or legislative intentions. These purposes remain, in most
cases, matters of continuing conflict and dispute. The planning view regards a statute as a
partial and incomplete expression of those intentions – partly because their content is not
completely agreed upon – and sees the statute as needing of further development and
specification, as applied to specific circumstances. It presumes that individual legislators
regard statutes as imposing further normative pressures on their personal actions and
intentions – reasons to take or restrain their intentions and actions -- as well as on the
actions and intentions of many outside the legislature. And, there is pressure in the other
direction as well – pressure to refine or redirect the legislative intention. Central to these
normative pressures is the notion that those involved in with the statute ought to seek to
present it as rationally directed to further a shared intention or policy of the statute and as
coherent or exhibiting integrity. These normative pressures will normally be manifested
in other legislative deliberations – certainly in deciding how much funding ought to be
provided and in considering amendments that may be proposed in light of experience –
but also in administrative and judicial proceedings as well. I think that they will also be
articulated in elections when candidates compete for positions in the legislature on the
basis of pledges to pursue certain policies or to alter or reject them.
In these ways, the planning perspective illustrates that legislative intentions are
subject to contestation and argument. This is as one would expect. There are many ways
to fill in or extend a partial plan and people can be expected to fight over how these steps
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should be taken. Moreover, even popular legislative programs are opposed by some who
would prefer to repeal the statute rather than extend it. But unless they can find ways to
do that that can win majority support from people who have already made some
commitments to the statutory scheme, opponents may need to find ways to work within
the legislative regime to divert and reshape legislative intentions gradually.
Finally, it is important to remark that as important as coherence is, it is one value
to be weighed and considered against others. Sometimes, full coherence or integrity is
not worth achieving because it would entail sacrificing other values of greater
importance. This is true for individuals too: the writings on tragic choice or
incommensurability are relevant in this connection. No one thinks that such examples
undermine the possibility of human integrity or agency; indeed some might argue that
such cases provide particularly good examples of what integrated moral agency actually
requires. So, I am not sure that failures of complete coherence undercut group agency
claims B at least if the failures are of the right kind.
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