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Collective Intentions, Collective Judgments
(1st draft. Comments welcome!)
Eerik Lagerspetz
Department of Philosophy and Political Science
University of Turku
Finland
[email protected]
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Introduction
The notion of collective will or collective judgment has several important roles in legal and
political theory. First, by recognizing some – but not all – human groups as legal persons, law
imputes acts, decisions and intentions to groups. Second, according to the traditional will
theory of law, originated by William of Ockham and Marsiglio of Padua, and developed by
the classical legal positivists like Thomas Hobbes, Jeremy Bentham, John Austin and Georg
Jellinek, law is an expression of the legislative will. Third, the notion of legislative intent is
commonly used in normative argumentation. The idea that courts are bound by the original
intention or will of the legislator seems to follow from the doctrines of the separation of
powers and of legislative sovereignty: the task of the legislator is to express its political will,
while the role of courts is simply to apply this will to particular cases. One aspect of this
deference is that when the “plain text” of statutes is unclear, courts are supposed to try to find
out what the legislature really means when enacting the problematic statutes. However, the
personification of law is central in other traditions, too. For example, Ronald Dworkin who
has criticized the usefulness of the notion of “legislative intent” (Ekins 2012, 15-30), has,
nevertheless argued that law ought to exhibit integrity. By this he means that it ought to be
possible to understand law as the creation of one single rational individual.
Fourth, most grandiosely, the “general will” or the “will of the people” is often taken as the
basic concept of normative political theory. The most famous expression of this idea comes
from Jean-Jacques Rousseau:
The body politic, therefore, is also corporate being possessed of a will; and this
general will, which tends always to the preservation and welfare of the whole and of
every part, and is the source of the laws, constitutes for all the members of the State,
in their relations to one another and to it the rule of what is just and unjust. (Rousseau
1758/1973, 120-1)
There are at least two important critiques of the notions of collective will or judgment as used
in legal and political theory. Some critics have argued that ascribing intentions to collectives
like legislatures is simply a category mistake, for only individuals have intentions. Intention
is a state of mind, a psychological phenomenon. Collective groups have no minds of their
own; therefore, they cannot intent anything. At best, the expressions such as “legislative will”
should be interpreted as metaphors. Further, some theorists have pointed out that voters may
support a proposal for different, even conflicting reasons. Even if collective intentions as
shared intentions are possible, the legislators, for example, need not share any single
intention or purpose that would be described as the intent behind a particular piece of
legislation, apart from the general and unspecified intent to enact a law (see arguments
reviewed in MacCallum 1968, and in Ekins 2012, chapters 1 and 2). Moreover, it may not
possible to find out the collective intent, even if it existed. Finally, it may be argued that say
that even when a legislative intent may be discovered, it need not bound the courts and other
interpreters of law.
In this text, I concentrate on the second argument according which a collective will is (almost
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always) non-existent, because decision-makers may support a decision for conflicting
reasons. I shall proceed in the following way. First, I depict a pattern which may arise in any
sufficiently complex decision-making body (a court, a committee, a Parliament…). Then, I
present a generalization of the pattern. Prima facie, the pattern and its generalization seems to
constitute a serious argument against all notions of collective will or collective judgement.
However, in his theory Philip Pettit (2003; 2004a, b; 2006; List & Pettit 2011) has tried to
show why such notions can still be perfectly reasonable in certain institutionally restricted
situations. Pettit sees an essential connection between ontological, methodological and
normative aspects of his analysis. He thinks that his view has important consequences for the
design of democratic institutions. Without questioning his basic thesis – that notions of
collective will or collective judgement may make sense in some contexts – I criticize some of
his presuppositions. In my treatment I utilize some of the arguments presented at first time by
the forgotten Danish legal and political theorist, Albert Heckscher (Heckscher 1892; on his
work, see Lagerspetz 2014).
Inconsistent decisions
The fundamental argument against the will-theory of legislation was put by Axel Hägerström
in the following way:
There is no reason why the decisive majority in the corporation should not contain
members who have altogether different objectives in view in voting for a law. (…) To
this should be added that legislation under modern conditions is often the expression
of a compromise between opposed ideas of justice, and therefore lacks any single line
of thought. Moreover, the results which could be reached by the means described
above are by no means satisfactory for determining the real intention of the
corporative legislator. That intention need by no means to be identical with the point
of view either of the law-commissions, of the committee, or of individual members.
(Axel Hägerstöm: ‘On the Question of the Notion of Law’ [‘Till frågan om den
gällande rättets begrepp’], 1917/1953, tr. C. D. Broad)
To take another classical example, Pierre-Joseph Proudhon argued against Rousseau’s theory
of general will in following terms:
Does the People, which is sometimes said to have risen like a single man, also think
like one man? Reflect? Reason? Make conclusions? (…) Now if the People has, in all
historical epochs, thought, expressed, willed and done a multitude of contradictory
things; if even today, among so many opinions which divide it, it is impossible for it
to choose one without repudiating another and consequently without being selfcontradictory – what do you want me to think of the reason, the morality, the justice,
of its acts? (Pierre-Joseph Proudhon: Résumé de la question sociale, 1848)
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Let us take concrete example of a case in which the will of a collective seemingly exhibited
the contradictory pattern denounced by Hägerström and Proudhon. In her study on the
Russian Parliament 1990-93 (Andrews 2002), Josephine Andrews analyses the voting
patterns in the Russian Parliament during the constitutional crisis which followed the fall of
the Soviet Union. The task of the Parliament was to accept a draft for a new Russian
Constitution, which would then be sent to the Congress of People’s Deputies for ratification.
Making a long story short, on March 26th 1992 the Parliament accepted nine amendments to
Chapter 2 of the draft by majority vote, and then voted against the entire Chapter 2, including
the nine amendments. The shocked Speaker rearranged a new vote, and then a third one, but
each time a narrow majority of the deputies rejected Chapter 2, although they had already
accepted all its parts separately. The same pattern recurred in the next day: the deputies first
amended Chapter 3 of the draft five times, and then again rejected the entire chapter. Finally,
on April 4, a majority in the Parliament voted to approve the amended version of the draft
constitution – including the previously rejected chapters 2 and 3 – and to submit to the
Congress for ratification. (Andrews 2002, ch. 2.)
How such an anomalous result was possible? What are the philosophical consequences of
such anomalies? Can we, say that a body which may produce incoherent results has a “will”
or is capable of forming and executing intentions? In which sense such decisions are binding?
One possible way to analyse the anomalous voting pattern exhibited by the Russian
Parliament is to see it as an instance of the general problem of judgment aggregation. The
problem was introduced into the recent discussion by Kornhauser and Sager (1986, 1993)
under the name of Doctrinal Paradox, and generalized and analysed by Philip Pettit and
Christian List in great detail in their numerous works (e.g. List and Pettit 2002; List 2006). In
modern presentations Kornhauser and Sager are usually mentioned as the inventors of the
problem. However, the same problem was already analysed in detail by a forgotten pioneer of
voting theory, the Danish lawyer Albert Heckscher (1857-1897) in his dissertation Bidrag till
Grundlæggelse af en Afstemningslære (1892).
On the first pages of his work, Heckscher defines his basic question: “What does it mean, that
the Many (an assembly) chooses, makes a decision?” He remarks that although the question
is about what should be done, it may be extended to situations in which the purpose of a
meeting is to find out how things are, to accept or reject some factual proposition. (Heckscher
1892, 5-6). He emphasizes that all expressions which ascribe mental or other actions to
collective groups such as assemblies are to be understood in a figurative sense. When we
study how “assemblies make decisions”, our subject is actually “the combined effects of the
decisions and wishes of different individual members”. (ibid. 6) Nevertheless, the analogy
between the individual and a collective decision is partly useful, and Heckscher returns to it
several times (see, e.g., ibid. 117, 148-149). Individuals, like groups, may have conflicting
preferences and contradictory beliefs. The subject of the study of voting is not psychology of
decision-making but its logical aspects (ibid. 8).
In the last chapters of his dissertation, Heckscher focuses on the role of voting in multimember courts, a subject of which he had first-hand experience. According to him, courts are
faced with voting problems of two types. First: what is the preferable voting method?
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Second: should the judges vote on premises as well as on conclusions, only on premises or
only on conclusions? (ibid. 117) Heckscher’s own example of the problem of judgment
aggregation is the following (115-6):
One judge acquits the defendant, for he does not consider the charge to be proven, one
because he does not consider it punishable, and one, because he considers the
defendant to be unaccountable [utilregnelig]. Each judge, supposing that he is forced
to express his opinion on each point, rejects the reasons of acquittal held by the two
others. The problem becomes then, if one can declare the acquittal being unanimously
accepted, or whether one should rather vote on reasons and present three questions on
premises: Is the charge proven? Is the act punishable? Is the defendant culpable? so
that the result, if in casu the answers to each question are detrimental to the defendant,
may be that the defendant is found guilty (…).
There are, then, three judges (A, B, and C) who have to answer to three separate questions.
(P): Did the defendant perform the relevant act? (Q) Was he culpable (that is, compos mentis,
not acting under duress etc.)? (R) Was the act unlawful? The answers are the court’s reasons
[Grunde] for its decision. All the judges agree that the answer to the question (S) “Should the
defendant be punished?” depends on the answers given to the questions (P), (Q) and (R): the
defendant should be punished only if the answer to the all three questions is affirmative. In
Heckscher’s example, the answers given by different judges diverge in the following way:
Example
(P)?
(Q)?
(R)?
(S)?
A
N
Y
Y
N
B
Y
N
Y
N
C
Y
Y
N
N
Majority
Y
Y
Y
N
Judges
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In the example above, a majority of the judges answers affirmatively in each of the questions
(P), (Q) and (R). Hence, if the judgment of the court is based on a majority voting, the court
should also accept an affirmative answer to the last question (S): the defendant should be
punished. However, the individual members of the court reject the proposition unanimously.
Nevertheless, all the individual judges vote in an individually consistent way. Heckscher
discusses this problem on several occasions (pp. 122-4; 149-51; 169-70), and gives further
examples.
The judgment aggregation theorem
Andrews’s real-life case and Heckscher’s fictional example are both instances of a more
general problem pertaining collective decision-making (List 2006; List & Pettit 2013; Ekins
2012). It is important to recognize that the problem does not presuppose the majority
principle. Suppose that the following conditions hold. There are at least two individual
voters. There is a fixed public agenda, that is, a set of propositions on which the voters have
to make judgments, to judge each of them as true or false. The agenda contains at least two
distinct atomic propositions (for example, “the act was punishable” and “the defendant
performed the relevant act”) and at least some of their molecular compounds (two or more
propositions connected by the basic logical connectives). Suppose, moreover, that the
personal judgments of individuals are complete so that for all propositions on the agenda each
of the individual voters accepts either a proposition or its negation. Their personal judgments
are consistent: an individual voter never accepts both a proposition and its negation. Now we
define a judgment aggregation function as a procedure which takes as its input a collection
(profile) of complete, and consistent sets of individual judgments, and aggregates them as a
set of collective judgments which satisfies the very same requirements, that is, it is also
complete and consistent. We may specify some reasonability conditions for such functions.
Unlimited domain. Any logically possible combination of individual judgments is admissible
as input to the aggregation, if these judgments satisfy the requirements mentioned above.
Anonymity. Informally, it ensures that all the individuals have an equal weight in the
aggregation process.
Systematicity. This condition requires that (a) the collective judgment on each proposition
should depend exclusively on the pattern of individual judgments on that proposition, and
that (b) the same pattern of dependence should hold for all propositions.
Part (a) of the systematicity condition ensures that only the judgments of the decision-makers
are relevant for deciding the status of a proposition, while, part (b) which ensures that all
propositions under consideration are treated in the same way. If, for example, a simple
majority of judges may decide whether the defendant preformed the deed, a majority of the
same size is also able to decide whether the defendant was accountable.1 Then, the following
impossibility theorem may be proven (List and Pettit 2002):
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The judgment aggregation theorem: There is no judgment aggregation function which
satisfies all the following conditions
(1)
(2)
(3)
(4)
(5)
unlimited domain
anonymity
systematicity
completeness (or decisiveness)
logical consistency
This result seems to provide a formal proof for the informal argument presented by the critics
of the legislative will or intention. The conditions (1)-(5) are prima facie plausible. For
example, while anonymity (2) is not self-evident in all deliberative contexts, at least in the
context of democracy equality is a central normative requirement. Moreover, the aggregation
problem can be avoided only by a complete abandonment of equality: the other requirements
can be met for a complex agenda if and only if there is one single individual – a “dictator” who makes all the judgments. The paradox can be avoided by adopting a neutral, nondecisive supermajority rule, and thus abandoning a part of the completeness requirement (4)
– but only the unanimity rule removes the problem completely while still satisfying the
anonymity (2) and systematicity (3) conditions. Relaxing the consistency requirement (5)
means simply affirming the Paradox. The domain condition (1) may be relaxed by excluding
the paradoxical patterns – in effect, by limiting pluralism.2
However, Philip Pettit does not interpret the theorem as a decisive argument. According to
him, it is obvious that collective bodies like legislatures do at least sometimes have intents,
ends and goals. They may be able to perform actions and make judgments. The requirements
of justifiability of individual decisions and of integrity or coherence of different decisions are
meaningful in collective as well as in individual cases. Moreover, judgmental coherence is a
diachronic as well as a synchronic requirement. While a reduction of the number of options
may make synchronically inconsistent voting results less likely or even eliminate them,
there seems to be no similar method to reduce the number of interconnected binary decisions
rising during the life-time of a decision-making body. The number of issues, as well as their
content and order, is partly exogenous: the issues have to be discussed and decided on when
they arise. This would not constitute a problem if a decision-making body could just ignore
its past judgments, treating them like the judgments of a different body. But, as Philip Pettit
says, courts and democratic bodies are subjects of expectations of diachronic as well as
synchronic consistency. They are expected to pursue policies consistently over time, and to
keep their commitments to their members as well as to outsiders (Pettit 2004b, 98). Pettit
formulates this requirement as a further normative constraint:
The group-rationality constraint: people should take steps to ensure that where their
voting would lead to inconsistent or otherwise irrational policies, this is remedied and
group rationality prevails.
For Pettit, this requirement of consistency has a deeper meaning. The group-rationality
constraint follows from the general deliberative idea that all decisions should be justified by
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rational reasons. He refers to Habermas’s conditions for ideal discourse, the justifiability
requirement according to which “the consensus brought about through argumentation must
rest on identical reasons that are able to convince parties in the same way” (Habermas 1996,
166, emphasis EL). A necessary requirement of rational justification is that it is at least
internally coherent.
The theorem above says that collective intents etc. cannot be reached by a mechanical
aggregation process, for such processes do not always obey the rationality requirements
which, according to Pettit, are necessary for all ascriptions of intentionality. Therefore, the
intents, goals and actions of organizations and other collectives are not simply results of
aggregation. Rather, according to Pettit, collectives can sometimes be persons with a will of
their own which is not reducible to the members’ present individual intents and actions.
Path-dependency of judgements and decisions
Because, the logical force of the result given above is undeniable, and because the other
conditions were found initially plausible, we are left with the systematicity requirement (3).
It says (a) that the rejection or approval of a proposition on the agenda should depend only
on the distribution of ‘yea’s’ and ‘nay’s’ related to that proposition, and (b) that the same
pattern of votes is necessary and sufficient in accepting or rejecting any other proposition.
According to Pettit, the fundamental solution to the problem is the acceptance of pathdependence in collective decision-making. In other words, the content of the final collective
judgment or decision is sometimes dependent on the order in which the preceding decisions
or judgments are made, and not only on the distribution of opinions. An outcome is justifiable
if it results from a path which has an independent justification – even when the outcome is
not, as such, supported by a majority of decision-makers.
Again, the basic idea can be traced back to Albert Heckscher (1892). In his work, he
discusses two alternative ways to make decisions. They are the premise-based and
conclusion-based procedures, or, in his words “voting on reasons” [Afstemning efter Grunde]
vs. “total voting” [Totalafstemning] or “voting on the result” (ibid. 117). In judgment
aggregation contexts, decision-makers are expected to form a collective judgment on reasons
underlying the final decisions, that is, on several, interconnected propositions. They may
accept some of the propositions as premises and derive the collective judgment on the
conclusions from the collectively accepted premises rather than voting directly on the
outcome. Consider again the example above. The three judges may first take a majority vote
on the proposition “Did the defendant perform the relevant act?” (P). Then they may vote on
the propositions: “Was he culpable?”(Q) and “Was the act unlawful?” (R). They
unanimously agree on the truth of the conditional proposition: “The defendant ought to be
punished (S) if and only if he performed the act, he was accountable and the act was
unlawful” (or: (S) ↔ (P) & (Q) & (R)). Then, there is no need to take a separate vote on the
conclusion; the majority judgments on the propositions (P), (Q) and (R) determine it. Such a
premise-based majority procedure satisfies all the conditions of the Judgment Aggregation
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Theorem except the systematicity condition (4). Notice that the procedure violates both parts
of that condition. It does not satisfy its (a)-part because the collective judgment on the
conclusion now depends on the collective judgments made on the premises, not on the
individual judgments made on the conclusion. Further, the premise-based procedure does not
satisfy the (b)-part of the systematicity condition because all propositions are not treated in
the same way: the premises are accepted by using the majority rule while the conclusion is
accepted without vote
.
Another alternative is that the judges vote just on the conclusion (S). This conclusion-based
majority procedure is – at least in our simple examples with one single conclusion – a case of
ordinary majority voting with a single decision and two alternatives. Thus, it satisfies the (a)part of the systematicity condition. However, it does not satisfy the completeness condition
(4), for the premises of the conclusion (P, Q and R) are not taken into consideration at all.
The Discursive Dilemma or the Judgment Aggregation Paradox consists essentially of the
fact that in some cases – as in Heckscher’s example - these two procedures produce differing
conclusions: if the judges follow the premise–based procedure, the defendant is punished; if
they follow the conclusion-based procedure, he is acquitted. In other words, the content of
the decisions is dependent on the decision-path.
All these insights of Heckscher have been re-found and rigorously analysed by List, Pettit
and their co-workers (List and Pettit 2002; List 2006). As List argues, “If there is pathdependence, a justification of the chosen path is crucial”. In courts and similar bodies, there
are often substantive justifications for the chosen decision-paths. For example, courts are
often bound by precedents, more general laws and principles may constrain less general
judgments, the verdict should precede the determination of punishments, and so on. In
contrast, the decision-paths used in political bodies often lack substantive justifications.
Consider the sequential decision-making methods used in parliaments. When there are more
than two alternative proposals, the version of the amendment method used in Anglophone
countries puts the status quo in the last ballot. In Swedish and Finnish parliaments, the
Speaker has to arrange the first voting between the alternatives that are “farthest away from
each other”.3 As Heckscher noticed (Heckscher 1892, 46-8), this rule presupposes an agreed
dimension along which the alternatives can be arranged. The Speaker has to decide, for
example, whether the Left–Right dimension rather than the environmental dimension is
decisive. This decision determines the voting order and, in paradoxical cases, also the final
outcome. In contrast to the trial case, there seems to be no obvious reason why precisely this
rule – rather than, say, the rule that amendments have to be considered first and the original
motion after them – should be followed.
Pettit’s thesis is that the “mind” of the collectives is essentially connected to the pathdependent nature of collective choices dictated by the institutional rules governing the
decision-making of the collectives. Collectives are able to behave and choose in a purposeful
way – in other words, they may be treated as agents - when, and as long as, the members
actively try to collectivize their reasoning by actively adapting path-rules which ensure
internal consistency. A commitment to earlier decisions is an important example. Collectives
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may be bound by their earlier (substantive as well as procedural) commitments, and those
commitments partly determine their subsequent choices. Thus, the possibility of collective or
social rationality is essentially dependent on the internal organization of reasoning in
decision-making bodies. Pettit thinks that his view has important consequences for the design
of democratic institutions (Pettit 2003; 2004a). If he is right, a strong responsiveness
requirement supported by most theorists of democracy from Rousseau to Habermas is
incompatible with the idea that the decisions should always be justified by coherent reasons.
More specifically, path-dependence is incompatible with the Habermassian requirements that
the participants are free “to call into question any proposal” and “to introduce any proposal”.
The “reversibility”, “provisionality” and tentative nature of all majority decisions is
emphasized by deliberative democrats like Jürgen Habermas (1996) or Seyla Benhabib
(1994) as an essential condition for legitimacy of the majority rule. Thus, for Benhabib “in
the discursive justification and validation of truth claims no moment is privileged as given,
evidential structure which cannot be further questioned” (1994, 5; my emphasis). 4 This
seems to exclude all collective commitments as “premises” -- except the general commitment
to the rules of discursive justification itself. The commitment to principled decision-making
or “integrity” has, according to Pettit, definite institutional consequences. For only relatively
small, internally organized groups are able to possess a “will”, that is, to commit themselves
to collectivized reasoning.
Heckscher and Pettit: some doubts
The basic argument for the use of premise-based methods given by Heckscher is that court
decisions, unlike those of the legislators, are not supposed to be acts of will but judgments of
reason. Especially in the continental legal tradition, court decisions are often considered as
conclusions of logically valid syllogisms in which the premises simply state the content of
law and the judicially relevant facts. Thus, when accepting the premises, the court is not
supposed to really decide on anything; rather it recognizes an already existing fact, while the
conclusion is simply a logical consequence. Judges should agree on the premises and on the
conclusion. Therefore, so goes the argument, the premise-based method is naturally
employed in courts. In contrast, parliaments and other political bodies perform acts of will.
Individual voters and voter groups may support political proposals for various, partly
conflicting reasons. In such contexts, conclusion-based procedures are more reasonable.
(Heckscher 1892, 129-130.) Heckscher admits that this ideal theory exaggerates the
difference between courts and other bodies: in reality courts often do have some genuine
freedom of choice, while parliaments also rely on precedents and principles. Nevertheless, he
considers the basic distinction as valid. A court decision is legitimate because of the reasons,
not because the judges made it. Hence, courts, unlike parliaments, should also vote on
reasons. This mode of voting forces the judges to deliberate carefully on the reasons
underlying their decisions (ibid., 133).
In his dissertation Heckscher discusses several other examples of decision problems. One is
the following. A three-member committee must assess the profitability of a planned new
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railway line. One of the members thinks that the line will be economically effective because
of growth in coal shipments (P1), another because of increased salt transportation (P2) and a
third because of the increase in the number of people using the railway as a means of
transport (P3) (Heckscher 1892, 123.). Suppose that the committee members agree that the
plan is to be accepted only if it the line is profitable (Q), and that it is profitable only if either
P1 or P2 or P3 is true. Here we have the example:
Example 2
Member
P1 (Coal)?
P2 (Salt)?
P3 (Person)? (Q) Profitable?
A
Y
N
N
Y
B
N
Y
N
Y
C
N
N
Y
Y
Majority
N
N
N
Y
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In this example all the members unanimously agree on the conclusion, but they disagree on
the truth or acceptability of the justifying premises. All the atomic parts of the disjunctive
proposition are rejected by (some) majority. If the committee follows a premise-based
procedure, it votes on the premises one-by-one and concludes that because none of them
enjoys a majority support, the railway should not be built. However, the committee-members
unanimously support the building of it. If the committee is a democratically elected body, the
constituents of the members may also support such a policy, although they, like their
representatives, may support it for differing reasons. In this case, a commitment to principled
premises totally sacrifices democratic responsiveness: the judgment “of the group” is able to
override even a unanimous will of all the individual members and of their constituents.
If, however, the committee members are content to vote only on the conclusion, ignoring its
possible justifications, there is no disagreement. Consequently, the committee members in the
example do not respect the justifiability principle shared by Pettit and Habermas: the
consensus must rest on identical reasons that are able to convince parties in the same way.
They cannot provide a reason which could be accepted by all reasonable citizens. However,
they are able to provide some reasons to any reasonable citizen. This type kind of agreement
is sometimes called “incompletely theorised agreement” (Sunstein 1994; cf. List 2006, 364)
but I think that it is nothing but a fancy name for the normal situation in pluralist decisionmaking. The chosen policies are often compatible with, and supported by, several, partly
incompatible normative and factual premises. Even when majorities agree on those premises
subjected to explicit discussion, these premises may, in their turn, be backed by further,
perhaps mutually incompatible reasons.
What would constitute a “completely theorised agreement”? In a wider context, apparently
premise-based reasoning may actually be conclusion-based, for a premise of one argument is
likely to be the conclusion of another. In his early treatise on the judgment-aggregation
problems, Albert Heckscher already presented the basic problem. The assumption is that the
decision-makers (or a majority of them) should agree on the reasons justifying a decision.
However, these reasons may be backed by further reasons, which could also be subjected to
collective judgment. If these further reasons are subjected to discussion and perhaps voted on,
it is possible that the decision-makers will not agree on these further reasons, although they
have reached an agreement (or a majority verdict) on the lower-level reasons. Their higherorder judgments may, again, be based on further reasons. If the decision-makers focus on the
premises rather than the conclusion, what stops the regress? The regress of reasons has to be
halted somewhere, but the way in which the regress is halted may well have an effect on the
final result (Heckscher 1892, 119-20; 132). In a sense, the question whether a particular
series of decisions is seen as an instance of the paradox (in the synchronic or in the
diachronic sense) may depend on how far back the chain of interconnected propositions is
followed, that is, on the agenda of discussion and decision-making. In all real-life decisionmaking, some background propositions must be taken as granted. Outside a timeless ideal
speech model, some reasons are necessarily left unstated, and those in the majority may well
disagree on these unstated premises, although they happen to agree on the propositions put on
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the agenda. Total majority consistency is as outlandish as Habermas’s complete consensus -unless the people or at least the members of the majority are complete replicas of each other.
The counterarguments presented above are all related to the synchronic consistency of
decisions. What about diachronic consistency, the requirement that the decisions of a body
should be consistent over time? Here, the trade-off is not only between democratic
responsiveness (which requires that decisions should be accepted by current majorities) and
group-rationality (which requires consistency). There may also be a trade-off between
different aspects of rationality (Ottonelli 2010). Recall Pettit’s notion of group rationality
quoted above: “People should take steps to ensure that where their voting would lead to
inconsistent or otherwise irrational policies, this is remedied and group rationality prevails”
(my emphasis). Inter-temporal consistency is only one aspect of collective rationality.
Changing circumstances and new information may provide good reasons to revoke past
decisions, and an inability to revoke them is one possible sign of irrationality. Someone who
mechanically executes a pre-established programme is no more rational than someone that is
unable to execute any constant plan. If a body which constantly overrides its past decisions
seems to suffer of the weakness of will, a body which refuses to change its decisions in new
situations behaves like a stubborn or compulsive individual. The latter form of irrationality
can be as troublesome as the former. For example, one problem which haunts multi-party
coalition-politics is that when parties have, perhaps after complicated negotiations, agreed on
a common programme, it may often be difficult to revise the programme in new
circumstances. Parties consider themselves to be committed by the programme, while the
individual members are bound by the party discipline. By treating the programme as an
irrevocable premise, the Parliament is able to have “a will” of its own, a will which may
override the will of the current majority. There is, however, no reason to think that the earlier
will of the Parliament is necessarily more rational than the present one. Here the courts which
are bound by precedents, by the prevailing legal doctrines, and by the letter of law are in a
different position.
Conclusion
There is a more general lesson to be learned. Pettit argues that democratic bodies can and
should be like persons with a will of their own, but that in order to have a will, their reasons
and conclusions should be synchronically as well as diachronically coherent. Therefore the
responsiveness of decision-making has to be constrained. Coherence, however, is a matter of
degree, and Pettit seems to base his view on an unquestioned supposition that in order to be a
person, or to have will, a being has to be very coherent. Do we apply equally strident
standards to individual human beings? Individuals have different, competing desires and
values, and we may ask whether the overall rankings or actual choices result from a process
which respects conditions analogous to those applied in the Theorem above. For example, the
judgements or preferences of a rational individual need not to respect the conditions
analogous to our conditions (1) and (4); a rational individual needs not to be able to compare
all available options. Similarly, individuals need not always obey an anonymity condition
14
when comparing various reasons. And, as finite reasoners, they have to take some
propositions as granted, thus violating the systemacity condition. In spite of all this,
individuals are said to be capable of possessing rational wills. Even a person suffering from
serious mental disabilities may be able to express a clear will in some issues, and we may
justly think that in such issues their expressed will has a normative force. Why couldn’t we
analogously say, for example, that in some particular issue The People may have a clear will,
although in some (perhaps in most) issues it has no will at all? In short, it may be argued that
rationality conditions introduced by Pettit are too demanding. Collectives may sometimes be
incoherent or incomplete in their judgments, but so may individuals. Our rationality – in
individual as well as in collective cases -- is the rationality of finite beings.
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1
Courts may also be subject to qualified majority requirements; this is the case, for example,
in the German Supreme Courts in some issues.
For example: “The method of will formation through simple majority vote is sensible and
acceptable when an essential similarity among the entire people can be assumed. For in this
case, there is no voting down of the minority. Rather, the vote should only permit a latent and
presupposed agreement and consensus to be evident.” (Schmitt 1932/2004, 27-8).
2
3
Some further variants: Amendments are considered in the order submitted (the Parliaments
of Portugal, Bulgaria, and Costa Rica); by addressing the largest changes first (Italy); by first
considering proposals to delete portions of the main motion (France); in the reverse of the
order submitted (South Korea); in the order of first preference support (Denmark); or as the
presiding officer decides (Fiji). In Italy and Mexico, there is an additional ballot in which the
winning alternative has to be put against the status quo.
4
Here, deliberative theorists seem to agree with the more traditional theories of democracy.
Consider Rousseau: “Now the law of today must not be an act of the general will of
yesterday, but that of today. We have engaged ourselves to do not what all have wished, but
what they all now wish. For as the resolutions of the sovereign, as sovereign, regard only
itself, it is always free to change them. From which it follows that, when law speaks in the
name of the people, it is in the name of the people as it is now and not as it used to be. The
laws, although received, only have lasting authority so long as the people, being free to
revoke them, nevertheless does not do so.” (Geneva manuscripts, Cole p. 293.)