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Revolutionary Ideas: An Introduction to Legal and Political Philosophy


  

1. Overview of the Subject




1.1. Introduction

 
Why should we have a state
 

In this course we'll begin by asking the question, why should we have a state? Why should we have any legal or political institutions at all? We will consider four families of answers, answers that concentrate on the importance of the state's role in bringing about happiness or welfare, justice, equality, and freedom. Answering these questions will provide us with a lot of the basic background concepts of legal and political philosophy, concepts that have been developed over thousands of years.

 
Four roles for the state
 
At that point, we'll turn to a different, more practical set of questions. How should we think of our political community? Should it have borders? How fluid, or open, should they be? How should the political institutions operate? How should we choose our political officials? Should we have what's called a representative democracy, or a direct democracy, where each person in the political community gets to vote on each law or policy directly. If we have representatives, should they be chosen by election or by lottery? Should we have a constitution? Why would a state need a constitution? If we have one, what should go in it?

 
normative questions
 
Finally, we'll ask questions about what should happen when things go wrong. What should we do if people break the law? Should we punish them? How? Maybe more importantly, why? Note that all of these questions are framed as questions about what we should do, or how we should set things up. These are what philosophers call normative or moral questions, questions not just about how things are, but about how they ought to be.

Legal and political philosophy help us to think about not just what our legal and political institutions are currently like, but also about what they might be like, and about what they should be like. That's the point of this class. Along the way, we will learn about the views of important philosophers, Aristotle, Plato, Thomas Hobbes, Jeremy Bentham, Immanuel Kant, Mary Wollstonecraft, John Stuart Mill, José Martí, Robert Nozick, Frantz Fanon, John Rawls, Ronald Dworkin, Amartya Sen, Kwame Anthony Appiah, Martha Nussbaum, and many others.

 
Wittgenstein comment
 
There are a few more things Professor Alex Guerrero wants to stress at the beginning. First, this is a philosophy class. It is not aimed at convincing people of the one right set of answers to any of the questions that we will consider. The philosopher Philippa Foot has said, you ask a philosopher a question, and after he or she has talked for a bit, you don't understand your question any more. In a similar spirit, Ludwig Wittgenstein said that science builds a house with bricks which, once laid, are not touched again. Philosophy tidies a room and so has to handle things many times. The essence of its procedure is that it starts with a mess, we don't mind being hazy so long as the haze, gradually clears.

Professor Guerrero hopes that this course will help people to think critically and clearly about the legal and political world. He doesn't care much about convincing others of any one view or ideology. Things might get a bit hazy before they become clearer. Philosophy is very much something that's still going on all around the world. We'll read work from philosophers, men and women, from around the world, from past and present. We'll discuss a wide range of legal and political systems from all around the world.



1.2. Political institutions and starting positions


 
Why should we have a state
 
Political and legal institutions are the products of human minds. We have made legal and political institutions, not just for fun, not inevitably, but to make our lives better, to help us solve us some of the problems that we face, to help us respond to the harsh realities of the world and, to help us meet our and each other's needs. In this way, they are kind of tools. Unlike many tools however, the help they provide is not just to make our lives easier or to allow us to do things or go places that might otherwise be difficult. Many have argued that they play another crucial role helping us to fulfil our moral obligations to ourselves and to each other.

The first question that we will consider is this. Why should we have a state? Why should we have a government at all? The rest of this unit is an introduction to the many answers that have been given to that question. All of these answers are in a way part of a response to the human condition. Human beings on planet Earth are born into many different starting situations. Some people are born into great wealth, privilege, and opportunity. Some are born into great poverty, disadvantage, and lack of opportunity.

 
things we need
 
Many have thought that this fact, the fact of our different starting places gives rise to certain moral problems, given facts about what it is to be a human being. Here's one such claim. Human beings are creatures with different kinds of potential skills and abilities and as such we have a moral entitlement, a moral right to what is needed to develop those skills and abilities. So here are some the things we need, physical health, survival, bodily integrity, freedom of movement, control over our environment, the ability to develop and exercise our capacity for imagination, thought, practical reasoning and play, the ability to develop and exercise our capacities for love and emotional engagement.

 
capabilities approach
 
Martha Nussbaum and Amartya Sen have developed this argument highlighting the importance of what they call the capabilities approach. In this view, one purpose of political institutions and one of the basic problems of justice is to help make sure that people have enough material resources and education to realise all of these different capacities which they claim are central to human existence and that people be able to do this regardless of their starting positions in life. Nussbaum and Sen argue that this is essential for our individual welfare, but also that it's a central concern of justice, something that all of us should be concerned about as part of our moral obligations.

A related thought is that human beings are autonomous creatures. What is autonomy? There are significant discussions about this concept but one basic idea is that a creature is autonomous if it's capable of acting for reasons, of thinking about what it believes, values and cares about, and developing plans and goals in light of those beliefs and values. We can set our own ends and then reflect back on those ends. We can step back from what we currently believe and ask, is that belief justified? We can step back from what we currently value and ask, do those values make sense? Are they the right ones to have?

Although we are autonomous in this way, that doesn't mean that we are born autonomous, rather there are various material and developmental preconditions to allowing us to develop our autonomy and to become autonomous creatures. We don't just need to be free from the external restrictions in order to be autonomous. We don't just need to be free in the sense of not being in prison. We also need some positive support, through education, material support such as shelter, food, and water, love and society. In this view, one purpose of government or political institutions is to help make sure people develop their autonomy, regardless of their different starting points.

John Rawls and others stressed that the situation that we're born into is a morally arbitrary fact about us. It's something that none of us had any responsibility for and so we should not be unduly benefited or penalised simply from the situation into which we are born. Whatever we think the proper principles are for allocating resources for distributing goods and opportunities, employment, it won't have anything to do with something morally arbitrary like the fact of our birth situation or at least that's the suggestion that Rawls and others have made. In this view, one purpose of political institutions is to make sure that the distribution of benefits, burdens, opportunities and so on, are not simply a function of the situation into which we are born and that this is required as a matter of justice.

A related concern is motivated by the thought that we are all fundamentally morally equal, although we may not be equal in terms of our talents, attractiveness, intelligence, perseverance, strength, and so on. Many of these other factors are the product of our birth situation, some combination of genetics and our early environment. In one kind of strict egalitarian view, one purpose of government is either to eliminate all inequalities, or to eliminate some subset of inequalities, perhaps those due to morally arbitrary factors, whatever those end up being. This may be good in its own right, sort of levelling the playing field, or it might be good instrumentally to prevent social or political domination or oppression.



1.3. Peace and problem solving


In this segment, we will consider several other important roles for political and legal institutions, all of which also stem from facts about the human condition. Here's a very different kind of consideration, one that doesn't focus on our different starting places, but on what we are like. Human beings who live in close proximity to each other might not always treat each other well or fairly. This can lead to violence and instability. Beginning with Thomas Hobbes, but before that as well, philosophers have noted that one rule for the state, for political institutions, is to help us keep the peace. We are social animals. We like to live and work and play with each other. But we also are capable of disagreement, conflict and violence. We don't always get along.

 
Political institutions
 
In this view, one purpose of political institutions is to help minimise our conflicts in the maximally peaceful and welfare-promoting way, helping us to resolve disagreements rationally, productively and peacefully. And to be able to gain the benefits of society without the subsequent war and chaos that interaction can bring. So political institutions can help with all of the following. Limiting freedom if that freedom is being used inappropriately to hurt other people, for example. Helping us get out of the state of nature, as Hobbes and others talk about it. Eliminating the need for vendetta and revenge justice. Preventing people from harming each other. Preventing stronger or larger groups from dominating weaker or smaller groups. So the state can play a role in helping do all of these things.

 
collective action problems and public goods
 
A related set of concerns stem not so much from keeping the peace and avoiding violence, but about working together to solve the most urgent problems that we as a community of human beings, face. Human beings don't all agree on what to do and there may be collective action problems that we need to coordinate and work together to solve, and what are called public goods, that we need to work together to produce and sustain, which might be essential for our survival.

The basic idea of a collective action problem is straightforward. The term collective action problem describes the situation in which multiple individuals would all benefit from taking a certain action or certain kind of action, but that action has an associated cost with it, making it implausible that any one individual can or will undertake and solve it alone. The rational choice is then to undertake this as a collective action, the cost of which is shared. This kind of problem often arises with respect to the provision of what are called public goods.

 
public goods
 
A public good is a good that is both non-excludable and non-rivalrous. A good is non-excludable if individuals cannot be effectively excluded from using it. A good is non-rivalrous if use by one individual does not reduce availability to others. So some examples of public goods include clean air, Earth's atmosphere, knowledge and information, national defence, flood prevention systems and street lighting. Of course, for some of these, we could make an effort to limit the use by some people, but it's not easy.

One problem with public goods as a result is the free-rider problem, in which people not paying for the good may continue to access it. Another related problem is the tragedy of the commons, where consumption of a shared resource by individuals acting in their individual and immediate self-interest diminishes or destroys the resource. Earth's climate might be an example of this. We all share the Earth and its human being hospitable environment. But by taking certain actions focused on our short-term self-interests, it's easier to drive than to walk, for example, we use up this resource.

 
other purposes for government
 
So, another purpose for government is to help solve collective action problems, to provide and sustain public goods and to prevent the free-rider problem, perhaps through mandatory taxation and joint finance of public good projects, and by preventing the tragedy of the commons by imposing limits on use. Doing all of this might be important for improving welfare or happiness, or for promoting justice, equality or autonomy, all of these different rationales.

 
epistemic
 
A final reason we might want a state stems from the fact that human beings are not omniscient. We do not know everything. And for any one person, there may be much about which that person is ignorant. This fact motivates what philosophers might call epistemic reasons for having a state.

Epistemic as a word is derived from epistemology, which is the study of knowledge, its promotion and what constitutes justified belief. Because human beings are not omniscient, we don't know everything, solving urgent problems may require a division of labour. And making good decisions as a community may require us to learn from each other in various ways. This might be essential for promoting happiness and for achieving justice.

 
other purposes for government
 
One thing we see in this regard is the use of elected representatives to make informed decisions. There are many reasons to think that systems of electoral representation will make decisions that bring about good outcomes. Representatives are solely devoted to the task of making law and policy. They have time to research, consult experts, consult constituents, deliberate and debate. In many places, they have considerable staffs of people helping them, so they can come to have a more informed opinion about what needs to be done, which problems are most urgent. Representatives are in a position to make decisions holistically, weighing tradeoffs, making compromises when necessary, balancing competing interests and having a sense of relative priority and budget limitations.

A second role for the state might be to figure out ways to harness and use the expertise that some members of our community have with respect to particular issues. So we might face a problem that requires technical or scientific knowledge, but we might not have that knowledge ourselves. Perhaps we want to know how much lead can safely be in our drinking water and how to detect the levels of lead in some body of water. In many places, there will be experts in charge of helping policy makers to make these decisions. In the United States, there are administrative agencies, such as the Food and Drug Administration or the Environmental Protection Agency. These agencies use scientists and other experts to help make these policy decisions.



1.4. Choice points in designing a state


 
choice points
 
Why should we have a state? In thinking about this, we will also be thinking about other questions. What should the state look like? What kind of state should we have? What kind of institutions should there be? How should they operate? Answering all of these questions requires having some understanding of the various options or the various choice points that we face. What are some of the choice points that we or some imagined constitutional designer might consider? At a very basic level, we can think about the source or ultimate foundation of political power.

 
ultimate source of power
 
There are a lot of options. Does political power come from a god or gods? That would be a theocracy. Does it come from the will of a king or a queen? That would be monarchy. Does it come from the power of an elite group? That would be oligarchy or aristocracy. Does it come from technical knowledge or expertise? That would be called technocracy. Does it come from the people in some sense? That is democracy. One of the most significant developments in the past 2,000 years on the planet is the general move away from versions of theocracy, monarchy and oligarchy and toward various forms of democracy.

 
trias politica
 
For most of the course, we will assume that some version of democracy is the most morally attractive option, so the debate will be focused on the details. Within any legal and political system, there are many distinctively legal and political tasks or roles to be performed. There's the legislative task, the creation of law and policy. There's the executive or enforcement task, the execution and enforcement of laws and policies. And there's the judicial task, the application of general laws to particular cases.

 
legislative options
 
Accordingly, there are different ways in which each of these can be carried out. For the legislative task, one option is to have a direct democracy, where all people vote on all issues and proposed laws. As an alternative to this, there is representative democracy, where some subset of people will make law and policy.

If we have a subset of representatives, there are further questions. How should we choose them, by election, or by lottery as was common in the ancient world? Should they represent a particular geographic district or should they represent some other constituency, such as political party, religion, age or profession?

 
legislative options
 
Should we have a single member district system, where one person is chosen to represent some group, or a multi-member system, where each of us have several different people who are supposed to be representing us? If we have elections, how should they be set up? Should voters vote for candidates directly or for party platforms? Should all people get a vote?

Should all the votes be counted equally or should some be weighted? Should there be educational requirements, or competence or knowledge tests before one can vote? Should we just vote for one candidate or should the system take into account our rankings over all of the different candidates? All of these are different options have actually been considered and employed in practise in different places.

 
legislative options
 
There are other questions. How should the legislature itself be structured? Should there be multiple houses of the legislature? If so, based on what? In the United States, we have the Senate and the House of Representatives. And there's questions about the relationship between those and why one is populated in a certain way and one is populated in a different way.

There are questions about the relationship between the legislature and the other branches of government. In particular, should there be an executive veto or not over what the legislature does? Should there be a judicial veto where we have something like a supreme court that can overturn legislation that has been passed by the legislature?

 
legislative options
 
There are questions about the scope of the legislature. Should we have a legislature that can create law or policy over anything at all, or should there be constitutional or other kinds of limitations on what the legislature can do? Some of these limitations might be in place to protect the rights of individuals against the majority. So we might have something like a bill of rights that limits what the state can do.

Some of these limitations might be to limit the reach of the federal government as opposed to local governments. In federalist system with a central federal government and local states, there are questions about the relationships between them.

 
legislative options
 
Should we have a generalist legislature that handles all policy matters or should we have single issue legislatures that focus just on one relatively narrow area of law or policy? Should the legislature also be responsible for taxation, figuring out who pays taxes and how much they pay, for setting the national budget? These are all questions that we can ask about the legislature.

 
judicial options
 
With regard to the judicial task, there are again many questions we might ask about how the judicial system should work. One initial question concerns the judicial power and whether there should be a constitution that the judiciary is responsible for interpreting and protecting.

A big related question is whether there should be a Constitutional or a Supreme Court that has the power to overturn executive decisions or legislative actions on the grounds that those are unconstitutional. One option is to have a court like the United States Supreme Court that can rule these things unconstitutional directly, invalidating them as law by declaring them unconstitutional. Another option is to have a court that gives what we might call suggestions or advice to the other branches about how to best interpret the constitution without overturning anything directly.

 
judicial options
 
Turning from the role of the judiciary in interpreting and enforcing the constitution against the other branches of government, we might ask about the role of the judiciary in interpreting and applying generally written laws to particular people. In any particular case, there are at least four relevant questions about applying a general law to a particular person.

First, there's the question, what is the relevant law? Sometimes this is clear. There's a well written, unambiguous, clearly relevant statute. Sometimes this is messy, so we get something not like a clear statute, but common law developed over centuries by tradition and by courts making decisions in particular cases.

Second question, what are the relevant facts? What actually happened? What evidence is there that supports the conclusion that this happened or this doesn't happen? Third question, how does the relevant law, the general law, apply to the facts of this particular case? The final question, what should happen to the individuals involved in the case, the particular people, given the conclusions reached to these other three questions? So what should the consequences, punishment, fines, compensation, and so on be, if any?

 
judicial options
 
In any legal system, some individual or group of individuals will have to be charged with answering these four questions. We can ask, how should they go about answering these questions in a particular case? And who should be responsible for answering them? These are questions that we have to think about in designing a legal system. One option is to use legal professionals, appointed or elected judges or judge inquisitors. Another option is to use non-professionals, citizen juries made up of, for example, randomly selected members of the population.

In many systems, there will be a mix of the legal professionals and the non-professionals, who are both involved in answering these questions, maybe with different rules. In the United States, for example, the factual questions are mostly the responsibility of the jury, while the purely legal questions are the responsibility of the legal professionals, so the judge, in some cases, the lawyers. In inquisitorial systems, even the fact finder, the person determining the facts, is a political official. Again, these are all choice points that we have in designing a system.

 
executive options
 
Finally, there's the enforcement or the executive task. How are the laws that are actually enacted be enforced? How will they be given detailed and precise application? And how will other responsibilities of government be carried out? For example, who will be responsible for national security and national defence, for regulation of food, agriculture, the environment, medicine, transportation, infrastructure, and health? There might be laws or policies passed on these things, but who's going to actually carry out the day-to-day administration?

 
executive options
 
These might all be the responsibility of the legislature in some sense, but in many systems, there's also an executive administration responsible for carrying out the day-to-day component of these tasks. Given this, there are important questions about how this executive branch will relate to the other political branches. So, will the executives be popularly elected, or will they be appointed or chosen by the legislative party in power? Are administrative agencies, if we have such agencies, going to be under the control of the executive, or might they be independent and technocratic? Or, as another alternative, might they be elected, be political in this sense?

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political community options
 
In addition to these structural questions about the institutions and their roles, there are questions about the political community that we might ask. First, we might think about the size of the political community in terms of geographic size and population. A related issue is the basis of political community. Should we all be members of a political community based on geography, or based on shared values, culture, or language?

Another question we should think about and we'll talk about in the class is the rigidity of the political community, how easy is it to enter and exit. Similarly, we might think about the rigidity of the institutional framework. Once we've figured out our answers to all these different questions that we've been talking about, there'll be questions about how easy it should be to alter the institutional structure.

There'll be pros and cons, different things we'll consider on each side. And then there are questions about the relationships amongst the different branches and functions of government. These issues are discussed in this class. Professor Guerrero mentions them here to give a taste of the different options and the way in which we do have real choices to make about our political system, about our legal system, choices that philosophical argument and in particular, moral argument of a certain kind, can help us to make.