Proceduralists hold that democracy has a non-instrumental value consisting in the ideal of equality incorporated by fair procedures. Yet, proceduralism does not imply that every outcome of a democratic procedure is fair per se. In the non-ideal setting of constitutional democracies, government and legislative decisions may result from factional conflicts, or depend on majoritarian dictatorships. In these circumstances, Supreme Courts provide a guardianship against contested outcomes by enacting mechanisms of checks and balances, constitutional interpretation and judicial review. Yet, in (...) virtue of this role, Supreme Courts exercise a form of epistocratic power, which rests at odds with the ideal of political equality. We analyse this dilemma and propose a solution, arguing that Supreme Courts do not run unrestrained decisions; rather their decisional power is bound to the protective function of fundamental rights, in which their constitutional mandate ultimately consists. (shrink)

This article provides an exploration of the relationships between a procedural account of epistemic democracy, illegitimate laws and judicial review. I first explain how there can be illegitimate laws within a procedural account of democracy. I argue that even if democratic legitimacy is conceived procedurally, it does not imply that democracy could legitimately undermine itself or adopt grossly unjust laws. I then turn to the legitimacy of judicial review with regard to these illegitimate laws. I maintain that courts do not (...) have a moral privilege on the overthrow of illegitimate laws; in this respect the refusal of royal assent has the same status. I also explain how the rule of the clear mistake fails to restrict the action of courts to only illegitimate laws. Finally, I argue for the positive epistemic inputs of weak judicial review. (shrink)

Among Bryan Norton’s most influential contributions to environmental philosophy has been his analysis and evaluation of democratic processes for environmental decision-making. He examines actual cases of environmental decision-making in their legal, political, ethical and scientific contexts, and, with contextual constraints and goals in mind, he theorizes concerning what they accomplish and how they can be improved. Informed by the political theories of both John Dewey and Jürgen Habermas, Norton’s pragmatist approach holds that appropriate democratic decision procedures will generate broadly defensible (...) decisions. Thus, his view of environmental decision-making is based in—and requires—inclusive, democratic, empirical inquiry. While accepting these criteria, I examine how, in practice, it is difficult to identify when these conditions have been adequately met. I investigate the limitations of Norton’s proceduralist approach through a case study in community-based forest management in a New York State urban old-growth park. I argue that Norton’s procedural priorities are too rigid given the contextual constraints of local decision-making. While they are useful for guiding an ideal, high standards sense of the decision-making process, less rigid Deweyan considerations of social learning and community engagement often provide sufficient guidelines for evaluating success. (shrink)

According to instrumental proceduralism, political power is justified when it is the output of a reliable procedure. In this paper, I examine how procedures are supposed to confer normative properties. Based on this assessment, I conclude that many proceduralists set the reliability bar too low. Next, I motivate two additional requirements for instrumental procedures. I introduce the notion of “predictable” procedural failure and argue that in order for a procedure to confer legitimacy or other normative properties on its output, (...) it must not have failed predictably. Finally, I argue that even when procedures are highly reliable, it must not be the case that their failures fall disproportionately on certain people. The goal is to develop an instrumental proceduralism that is more sensitive to the failures of real institutions. (shrink)

I argue that Habermas's conception of moral justification cannot be proceduralist in the way he claims that it is if discourse ethics is to remain a version of Kantian ethics. This argument is supported by two claims. The first is that Habermas claims there are no substantive constraints on moral argument. The second is that discourse ethics requires the substantive constraint of moral respect where moral respect is understood to be a preprocedural norm to which all moral claims are accountable.

In this paper I defend a pure proceduralist conception of legitimacy that applies to epistemic democracy. This conception, which I call pure epistemic proceduralism, does not depend on procedure-independent standards for good outcomes and relies on a proceduralist epistemology. It identifies a democratic decision as legitimate if it is the outcome of a process that satisfies certain conditions of political and epistemic fairness. My argument starts with a rejection of instrumentalism–the view that political equality is only instrumentally valuable. I (...) reject instrumentalism on two grounds: (i) because it fails to respect reasonable value pluralism and to recognize the constitutive role of democratic procedures for legitimacy in pluralist societies, and (ii) because it neglects the constructive function of democratic decision-making. I then consider two alternatives to pure epistemic proceduralism: David Estlund's version of epistemic proceduralism and a Deweyan account of epistemic democracy. I argue that only pure epistemic proceduralism can make good on both shortcomings of instrumentalism, whereas each of the other two approaches only makes good on one and neglects the other. (shrink)

A conception of legitimacy is at the core of normative theories of democracy. Many different conceptions of legitimacy have been put forward, either explicitly or implicitly. In this article, I shall first provide a taxonomy of conceptions of legitimacy that can be identified in contemporary democratic theory. The taxonomy covers both aggregative and deliberative democracy. I then argue for a conception of democratic legitimacy that takes the epistemic dimension of public deliberation seriously. In contrast to standard interpretations of epistemic democracy, (...) however, the conception I put forward avoids procedure-independent standards of correctness. Instead, it relies on a procedural social epistemology and defines legitimacy entirely in terms of the fairness of procedures. I call this conception of democratic legitimacy `Pure Epistemic Proceduralism'. I shall argue that it should be preferred over `Rational Epistemic Proceduralism', the conception of legitimacy that underlies the standard interpretation of epistemic democracy. Key Words: legitimacy • deliberative democracy • epistemic democracy • social epistemology. (shrink)

This essay aims to provide a philosophical analysis of the Chinese concept of cheng (sincerity) as a political virtue that could be incorporated to ground a duty of civility in liberal deliberative democracy. It is argued here that the virtue of sincerity is an essential feature of the liberal political culture taken for granted by Rawls in his theory of public reason. Ideal procedures and public discourse are not sufficient to generate civic virtues. The goal of this essay is to (...) show how, in the Chinese conception, the root of civility lies in the virtue of Cheng, which can provide the moral grounding for a duty of civility that is essential to sustaining the stability and overcoming the problem of defection from support of the common good in pluralistic states. (shrink)

: This essay aims to provide a philosophical analysis of the Chinese concept of cheng (sincerity) as a political virtue that could be incorporated to ground a duty of civility in liberal deliberative democracy. It is argued here that the virtue of sincerity is an essential feature of the liberal political culture taken for granted by Rawls in his theory of public reason. Ideal procedures and public discourse are not sufficient to generate civic virtues. The goal of this essay is (...) to show how, in the Chinese conception, the root of civility lies in the virtue of Cheng, which can provide the moral grounding for a duty of civility that is essential to sustaining the stability and overcoming the problem of defection from support of the common good in pluralistic states. (shrink)

Disagreement among philosophers over the proper justification for political institutions is far from a new phenomenon. Thus, it should not come as a surprise that there is substantial room for dissent on this matter within democratic theory. As is well known, instrumentalism and proceduralism represent the two primary viewpoints that democrats can adopt to vindicate democratic legitimacy. While the former notoriously derives the value of democracy from its outcomes, the latter claims that a democratic decision-making process is inherently valuable. (...) This article has two aims. First, it introduces three variables with which we can thoroughly categorise the aforementioned approaches. Second, it argues that the more promising version of proceduralism is extrinsic, rather than intrinsic, and that extrinsically procedural accounts can appeal to other values in the justification of democracy without translating into instrumentalism. This article is organised as follows. I present what I consider to be the ‘implicit view’ in the justification of democracy. Then, I analyse each of the three variables in a different section. Finally, I raise an objection against procedural views grounded in relational equality, which cannot account for the idea that democracy is a necessary condition for political legitimacy. (shrink)

In an age of professionalization and specialization, the practice of clinical ethics is facing an identity crisis. Are clinical ethicists moral experts, ethics experts, or merely quasi-lawyers giving legal advice? Are they extensions of the hospital, always working to advance the hospital’s interests? Or is there another option? Since 1998, when the American Society for Bioethics and Humanities first issued its Core Competencies for Healthcare Ethics Consultation, there has been debate about the role of standardization and proceduralism in clinical (...) ethics consultation. Now, as ASBH continues to move forward with its credentialing program, proceduralism in clinical ethics must be critically examined. In this paper, I argue that the proceduralist approach to clinical ethics consultation, as espoused by the ASBH’s call for credentialing, creates a demeaning experience for all parties involved and precludes goods internal to the practice of clinical ethics consultation from being actualized. As a practice embedded in medicine and in institutions such as the hospital, clinical ethics consultation must define and examine its own goods in order to bring about more than a sterile, law-like solution to difficult moral quandaries, as these sterile solutions leave patients, families, and providers unsatisfied, abandoned, and disappointed. Thus, in an effort to push back against this proceduralism in clinical ethics consultation, I will offer a preliminary exploration of what these goods might be. (shrink)

Most laypersons and political theorists endorse the claims that all adults should be enfranchised and all children should be disenfranchised. The first claim rejects epistocracy; the second...

Contemporary societies are riddled with moral disputes caused by conflicts between value claims competing for the regulation of matters of public concern. This familiar state of affairs is relevant for one of the most important debates within liberal political thought: should institutions seek to realize justice or peace? Justice-driven philosophers characterize the normative conditions for the resolution of value conflicts through the establishment of a moral consensus on an order of priority between competing value claims. Peace-driven philosophers have concentrated, perhaps (...) more modestly, on the characterization of the ways in which competing value claims should be balanced, with a view to establishing a _modus vivendi _aimed at containing the conflict. _Interactive Justice _addresses an important question related to this debate: on what terms should the parties interact _during_ their conflict for their interaction to be morally acceptable to them? Although largely unexplored by political philosophers, this is a main area of concern in conflict management. Building on a proceduralist interpretation of "relational" concerns of justice, the author develops a liberal normative theory of interactive justice for the management of value conflict in politics grounded in the fundamental values of fair hearing and procedural equality. This book innovatively builds a bridge between works in political philosophy and peace studies to propose a fresh lens through which to view the normative responses liberal institutions ought to give to value conflict in politics, and moves beyond the apparent dichotomy between pursuing end-state justice through conflict resolution or peace through conflict containment. (shrink)

Whilst legitimacy is often thought to concern the processes through which coercive decisions are made in society, justice has been standardly viewed as a ‘substantial’ matter concerning the moral justification of the terms of social cooperation. Accordingly, theorization about procedures may seem appropriate for the former but not for the latter. To defend proceduralism as a relevant approach to justice, I distinguish three questions: (1) Who is entitled to exercise coercive power? (2) On what terms should the participants to (...) a scheme of cooperation interact? (3) How should the costs and benefits produced by cooperation be distributed? Legitimacy concerns (1), whereas justice applies to (2) and (3). Although the appropriateness of proceduralism is debatable in relation to (3), it seems well equipped to address the justice-related question in (2). And it does so by focusing on the inherent moral acceptability of the way in which persons are treated by the procedures through which they interact. (shrink)

The usual justifi cations of democracy attach central importance to fair decision-making procedures. However, it is being increasingly emphasized that it is necessary to address epistemic considerations to justify democracy and democratic authority. In her book Democracy and Truth: The Conflict between Political and Epistemic Virtues, Prijić-Samaržija defends the view which places emphasis on the necessity of epistemic justification of democracy. In this paper, I will discuss her criticism of epistemic proceduralism, which can be considered major contemporary framework for (...) epistemic justification of democracy. Within the framework of epistemic proceduralism, for justifying democracy and democratic authority it is necessary to take into account both political and epistemic values. Nevertheless, Prijić-Samaržija thinks that epistemic proceduralism is not sufficiently epistemic and that it reduces epistemic to political values. I shall argue that epistemic proceduralism can be defended from this kind of criticism. (shrink)

My discussion here addresses one key question: has Alessandro Ferrara succeeded in outlining a cogent account of democracy ‘beyond the nation state’? Despite the volume’s many strengths, his The Democratic Horizon suffers from some underlying conceptual and programmatic ambiguities. The nexus between democracy’s ethos or spirit and its institutional and procedural components might have been more clearly elucidated. The author’s tendency to privilege democratic ‘ethos’ or ‘spirit’ over so-called ‘proceduralism’ ultimately risks discounting the significance of some democratic institutional and (...) procedural essentials. Like many others with similarly praiseworthy cosmopolitan normative instincts, Ferrara seems overly reluctant to acknowledge how stateness and self-government are likely to remain intermeshed. (shrink)

Substantive theorists of secession face a problem explaining why the international community ought on their view to withhold recognition from secessions which involve a loss in terms of the substantive criteria they privilege; this is so because the normal electoral politics giving rise to such a loss should not in their opinion meet with any adverse international reaction. The substantive theory of David Miller uses criteria for the legitimacy of secessions which give rise to strangely amoral consequences. A procedural theory (...) of secession is to be preferred on both moral and pragmatic grounds; this is one which that countenance secession when appropriate procedural hurdles are cleared, regardless of the substance of the claims put forward by secessionists to justify secession. (shrink)

This paper provides an interpretation of the licensing provisions envisaged under the Human Fertilisation and Embryology Act 1990 as a model for a rule and exemption-based procedural strategy for the adjudication of potential ethical controversies, and it offers an account of the liberal-democratic legitimacy of the procedure’s outcomes as well as of the legal procedure itself. Drawing on a novel articulation of the distinction between exceptions and exemptions, the paper argues that such a rule and exemption mechanism, while not devoid (...) of attractions, is not immune from the criticisms often levied against procedural approaches to the management of pluralism: it either has to fall back on substantive justification in ways that are not helpful when trying to arbitrate a moral controversy, or it appears justificatorily groundless. (shrink)

In pluralistic societies with conflicting conceptions of the good, purely procedural justice looms as particularly attractive. Moreover, the social contract device, in at least some of its conceptual adaptations, appears capable of yielding purely procedural outcomes. Based on an assessment of the respective contractarian arguments of Hobbes and Rawls, the author asserts that contractarian proceduralism is either purely procedural but not just, or else just but only derivatively procedural. Finally, after proposing that Habermas' discourse ethics and proceduralist paradigm of (...) law can be regarded as the perfection and culmination of contractarianism, the author concludes that it also ultimately fails to produce purely procedural justice. (shrink)

Consistent with Ruchkin and colleagues' proceduralist account, recent research on grouping and verbal-spatial binding in immediate memory shows continuity across short- and long-term retention, and activation of classes of information extending beyond those typically allowed in modular models. However, Ruchkin et al.'s account lacks well-specified mechanisms for the retention of serial order, binding, and the control of activation through attention.

Moral pluralism poses a foundational problem for secular clinical ethics: How can ethical dilemmas be resolved in a context where there is disagreement not only on particular cases, but further, on...

En este artículo presento de forma crítica la propuesta de ética del deporte como «bolsa de virtudes» que elaboran tres autores estadounidenses que son Lumpkin, Stoll y Beller. Dicha propuesta debe entenderse como una manifestación de sustancialismo neoaristotélico en deporte, con una clara influencia de MacIntyre. Mi objetivo es mostrar cómo dicho sustancialismo no es suficiente para una propuesta ética del deporte, por lo que abogo por incorporar algunos de los presupuestos del procedimentalismo ético aplicado al deporte. In this article (...) the author presents critically the proposed sports ethics as «bag of virtues» that Americans made three authors are Lumpkin, Stoll and Beller. This proposal should be seen as a manifestation of substantialism neoaristhotelic in sport, with a clear influence of MacIntyre. My aim is to show how such substantialism not enough for a sports ethics proposal therefore advocate incorporate some of the ethical proceduralism budgets applied to sport. (shrink)

Bioethics, Volume 36, Issue 7, Page 783-793, September 2022.

The argument I defend in this paper takes for granted that the proceduralist indictment against judicial review is at least partly justifiable, and that a complete theory of democratic legitimacy will therefore attempt to address it to the greatest possible degree. I examine how the indictment can be addressed via the practice of nonparty participation, whereby members of the general public may seek participatory involvement in a court proceeding despite not being directly implicated by the dispute at issue. Through this (...) practice, courts acquire a means to expose themselves to a cross-section of societal influences, which in turn can be said to improve the legitimacy of the decisions they render from a procedural perspective. Importantly, however, such legitimacy will not be transmitted spontaneously, as if the mere fact that courts allow nonparties to participate is all that is needed to address the proceduralist's concern. The crux of my argument is that only when the practice is conceived in a particular way, and is subjected to the appropriate conditions, does it have a genuine chance of realizing its legitimating promise. (shrink)

Most political liberals argue that only rules, policies and institutions that are part of society’s basic structure need to be justified with so-called public reasons. Laws enacted outside this set are legitimate if and when public reasons can justify the procedure that selects them. I argue that this view is susceptible to known problems from social choice theory. However, there are resources within political liberalism that could address them. If the scope of public reason is extended beyond the basic structure (...) it could order people’s preferences in a way that circumvents the identified issues. (shrink)

A paradox has always lingered at the heart of secular clinical ethics: How are ethicists to provide moral guidance in a pluralistic society? I want to thank all the commentary authors for being suc...