The ethics of voting is a new field of academic research, uniting debates in ethics and public policy, democratic theory and more empirical studies of politics. A central question in this emerging field is whether or not voters should be legally required to vote. This chapter examines different arguments on behalf of compulsory voting, arguing that these do not generally succeed, although compulsory voting might be justified in certain special cases. However, adequately specifying the forms of voluntary voting that are (...) consistent with democratic norms is likely to be philosophically complex and politically controversial. (shrink)

We live with the legacy of injustice, political as well as personal. Even if our governments are now democratically elected and governed, our societies are scarred by forms of power and privilege accrued from a time in which people’s race, sex, class and religion were grounds for denying them a role in government, or in the selection of those who governed them. What does that past imply for the treatment of religion in democratic states? The problem is particularly pressing once (...) one accepts that religious freedom is not just a matter of individuals’ freedom of conscience and worship, but of people’s claims to associate with others through institutions whose powers, status and commitment to equality are very different (Laborde, 2015). If this means that churches pose some of the same philosophical and practical problems as families, from a democratic perspective, the fact that churches have no obvious point or justification, beyond being the repository of the claims to conscience of their members, appears to distinguish them from the former. In principle, this should make it easier to think about the claims of government, as compared to those of churches. In practice, however, it may simply bring into sharper focus philosophical and political challenges to equality that contemporary democracies now face. (shrink)

According to Mathias Risse and Richard Zeckhauser, racial profiling can be justified in a society, such as the contemporary United States, where the legacy of slavery and segregation is found in lesser but, nonetheless, troubling forms of racial inequality. Racial profiling, Risse and Zeckhauser recognize, is often marked by police abuse and the harassment of racial minorities and by the disproportionate use of race in profiling. These, on their view, are unjustified. But, they contend, this does not mean that all (...) forms of racial profiling are unjustified; nor, they claim, need one be indifferent to the harms of racism in order to justify racial profiling. In fact, one of the aims of their paper is to show that racial profiling, suitably understood, “is consistent with support for far-reaching measures to decrease racial inequities and inequality.” Hence, one of their most striking claims, in an original and provocative paper, is that one can endorse racial profiling without being in any way indifferent to the disadvantaged status of racial minorities. In an initial response to these claims, I argued that Risse and Zeckhauser tend to underestimate the harms of racial profiling. I suggested two main reasons why they did so. The first is that they tend to identify the more serious harms associated with profiling with background racism, and therefore to believe that these are not properly attributable to profiling itself. The second reason is that they ignore the ways in which background racism makes even relatively minor harms harder to bear and to justify than would otherwise be the case. Hence, I concluded, racial profiling cannot be a normal part of police practice in a society still struggling with racism, although under very special conditions and with special regulation and compensation in place, it might be justified as an extraordinary police measure. I want to stand by those claims. However, Risse’s response to my arguments persuades me that I misinterpreted his earlier position in one significant respect. So I will start by explaining what interpretive mistake I believe that I made. I will then argue that despite Risse’s patient and careful response to my arguments, my initial concerns with his justification of profiling remain valid. -/- . (shrink)

Recent developments in neuroscience create new opportunities for understanding the human brain. The power to do good, however, is also the power to harm, so scientific advances inevitably foster as many dystopian fears as utopian hopes. For instance, neuroscience lends itself to the fear that people will be forced to reveal thoughts and feelings which they would not have chosen to reveal, and of which they may be unaware. It also lends itself to the worry that people will be encouraged (...) to submit to medication or surgery which, even if otherwise beneficial, alters their brain in ways that undermine their identity and agency. As Kenneth Foster notes, neural implants can have surprising and unintended adverse effects, even when they help to mitigate the loss of bodily control associated with Parkinson’s disease, or help to provide hearing for children who would otherwise be profoundly deaf. While the risk of adverse outcomes are scarcely specific to neuroscience, he thinks that ‘These issues are perhaps more acute’ with the latter than with other medical interventions, ‘because they are intimately and fundamentally related to a person’s communication with the outside world’. [ 2006 196] -/- Neuroscience, like genomic science, then, is likely to create new ways of harming people. Many of these will involve violations of privacy. However, these are unlikely fundamentally to challenge the reasons to value privacy, or our ability to protect it in the foreseeable future. Rather, I would suggest, the major threat to privacy comes from the difficulty of determining its nature and value and when, if ever, efforts to protect it are justified. So I will start by examining some threats to privacy, and their implications for neuroscience, before turning to philosophical problems in understanding the nature and value of privacy, and the practical consequences of those philosophical difficulties. (shrink)

This article develops an intuitive idea of proportionality as a placeholder for a substantive conception of equality, and contrasts it with Ripstein’s ideas, as presented in an annual guest lecture to the Society of Applied Philosophy in 2016. It uses a discussion of racial profiling to illustrate the conceptual and normative differences between the two. The brief conclusion spells out my concern that talk of ‘proportionality’, though often helpful and, sometimes, necessary for moral reasoning, can end up concealing, rather than (...) illuminating, people’s claims to be treated as equals. (shrink)

In this paper I respond to Mathias Risse's objections to my critique of his views on racial profiling in Philosophy and Public Affairs. I draw on the work of Richard Sampson and others on racial disadvantage in the USA to show that racial profiling likely aggravates racial injustices that are already there. However, I maintain, clarify and defend my original claim against Risse that racial profiling itself is likely to cause racial injustice, even if we abstract from unfair background conditions. (...) I then respond to Levin's claims that there is no serious racial injustice in the contemporary USA and differentiate between Risse's attempt - albeit unsuccessful - to provide an egalitarian justification for racial profiling from the frankly inegalitarian assumptions that underpin the claims of Michael Levin. (shrink)

La théorie démocratique contemporaine entretient une relation ambivalente avec les élections. Alors que les points de vue agrégatifs et minimalistes les considèrent comme une institution centrale de la démocratie représentative , les conceptions plus riches de la démocratie n’ont pas nécessairement de penchant pour elles. Les théories délibératives ont tendance à négliger les élections pour se concentrer sur la délibération publique, c’est-à-dire sur le processus continu de formation de l’opinion et d’échange de raisons qui se produit entre les élections . (...) Les théories participatives ont également tendance à les écarter en faveur d’une vision moins agonistique et plus coopérative de l’action politique . Par conséquent, peu d’attention normative a été accordée dans la littérature récente à ce moment très distinctif de la vie démocratique, à quelques notables exceptions près . Une conséquence naturelle est que la plupart des théoriciens font appel à des expériences délibératives telles que les jurys de citoyens et les mini-publics comme réponse efficace aux préoccupations démocratiques actuelles . Le tirage au sort peut ainsi être présenté comme une alternative préférable à l’élection, car il garantit une représentation descriptive, évite la capture de l’État par des élites puissantes et promet des résultats substantiellement meilleurs. Alors que de nombreux théoriciens s’intéressent aux moyens de compléter les institutions électorales par des organes délibératifs non électoraux , certains chercheurs se débarrasseraient volontiers des élections . Le moment est-il venu de les abandonner ? Cet article se concentre sur une affirmation spécifique que beaucoup de partisans du tirage au sort ont avancée, à savoir que celui-ci serait plus égalitaire que les élections, et vise à la rejeter. D’autres chercheurs ont déjà critiqué le tirage au sort pour diverses raisons. Landa et Pevnick , ainsi qu’Umbers objectent qu’il ne permet pas d’obtenir les améliorations instrumentales du gouvernement promises par ses promoteurs ; Ceva et Ottonelli , ainsi que Lafont nient que les critiques lotocratiques des élections reflètent une compréhension adéquate de l’autorité démocratique en tant que forme d’autonomie collective ; et Umbers soutient également que la lotocratie est en contradiction avec les principes de justice distributive et d’égalité sociale . En complément à ces critiques récentes, nous soutenons que la vision de l’égalité politique qui sous-tend le tirage au sort est problématique et peu convaincante. (shrink)

In Considerations on Representative Government, John Stuart Mill concedes that secrecy in voting is often justified but, nonetheless, maintains that it should be the exception rather than the rule. This paper critically examines Mill’s arguments. It shows that Mill’s idea of voting depends on a sharp public/private distinction which is difficult to square with democratic ideas about the different powers and responsibilities of voters and their representatives, or with legitimate differences of belief and interest amongst voters themselves. Hence, it concludes, (...) we should reject the assumption, which many of us share with Mill, that the secret ballot is justified only on prudential grounds and recognise how central privacy is to any democratic conception of citizenship and politics. (shrink)

: Does the rejection of pure proceduralism show that we should adopt Brettschneider’s value theory of democracy? The answer, this paper suggests, is ‘no’. There are a potentially infinite number of incompatible ways to understand democracy, of which the value theory is, at best, only one. The paper illustrates and substantiates its claims by looking at what the secret ballot shows us about the importance of privacy and democracy. Drawing on the reasons to reject Mill’s arguments for open voting, in (...) a previous paper by A. Lever, it argues that people’s claims to privacy have a constitutive, as well as an instrumental, importance to democratic government, which is best seen by attending to democracy as a practice, and not merely as a distinctive set of values. (shrink)

Philosophical reflection on racial profiling tends to take one of two forms. The first sees it as an example of ‘statistical discrimination,’ (SD), raising the question of when, if ever, probabilistic generalisations about group behaviour or characteristics can be used to judge particular individuals.(Applbaum 2014; Harcourt 2004; Hellman, 2014; Risse and Zeckhauser 2004; Risse 2007; Lippert-Rasmussen 2006; Lippert-Rasmussen 2007; Lippert-Rasmussen 2014) . This approach treats racial profiling as one example amongst many others of a general problem in egalitarian political philosophy, (...) occasioned by the fact that treating people as equals does not always require, or permit, us to treat them the same. The second form is concerned with how racial profiling illuminates the nature, justification, and reproduction of hierarchies of power and privilege based on skin colour and morphology. This form of reflection on racial profiling is therefore less about the justification for judging people based on the characteristics of the group to which they (appear to) belong, and more concerned with the specific ways in which the association of racialized minorities – and, in particular, black people – with crime, contributes to, and reflects, racial inequality, and oppression.(Kennedy 1998; Zack, 2015; Lever, 2005; Lever 2007). Both approaches to profiling have much to recommend them and, taken together, they form an essential component of the political philosophy of race. The statistical approach has the merits of linking racial profiling, as practice, to a body of other practices that generate and justify inequalities based on factors other than race, but it typically offers little by way of insight into the role of racial profiling itself in sustaining racial inequality and injustice. The racial construction approach, for obvious reasons, is rather better at the latter task, but its insights tend to come at the price of a broader understanding of the ways in which inequality is reproduced and justified, or of the ethical dilemmas raised by our competing claims to security. As we will see, insights from both approaches can be synthesized to clarify what, if anything, is wrong with racial profiling and what broader conclusions for equality and security follow from the study of profiling. (shrink)

Should voting be compulsory? This question has recently gained the attention of political scientists, politicians and philosophers, many of whom believe that countries, like Britain, which have never had compulsion, ought to adopt it. The arguments are a mixture of principle and political calculation, reflecting the idea that compulsory voting is morally right and that it is will prove beneficial. This article casts a sceptical eye on the claims, by emphasizing how complex political morality and strategy can be. Hence, I (...) show, while there are good reasons to worry about voter turnout in established democracies, and to worry about inequalities of turnout as well, the case for compulsory voting is unpersuasive. (shrink)

this paper argues that people are entitled to keep some true facts about themselves to themselves, should they so wish, as a sign of respect for their moral and political status, and in order to protect themselves from being used as a public example in order to educate or to entertain other people. The “outing” - or non-consensual public disclosure - of people’s health records or status, or their sexual behaviour or orientation is usually unjustified, even when its consequences seem (...) to be beneficial. Indeed, the paper claims, the reasons to reject outing, as inconsistent with democratic commitments to freedom and equality, are reasons to insist on the importance of privacy to freedom of expression. While a free press is of the utmost importance to democratic government, it is not identical with the free expression of individuals and, on occasion, the former may have to be constrained in order to protect the latter. [Barendt, 2007, 231]. Hence, the paper concludes, we should distinguish the claims of individuals to publish reports about their lives – even if this necessarily involves revealing the private lives of others – from journalistic claims to publish information about the sex lives of consenting adults. I will start by briefly situating my argument within a democratic approach to privacy, before using the “outing” of Oliver Sipple to examine people’s claims to privacy and their implications for freedom of expression and of the press. I will be assuming that some forms of privacy are legitimate, in order to focus more closely on the question of what information, if any, people may keep to themselves. (shrink)

The new frontiers in the philosophy of intellectual property lie squarely in territories belonging to moral and political philosophy, as well as legal philosophy and philosophy of economics – or so this collection suggests. Those who wish to understand the nature and justification of intellectual property may now find themselves immersed in philosophical debates on the structure and relative merits of consequentialist and deontological moral theories, or disputes about the nature and value of privacy, or the relationship between national and (...) global justice. Conversely, the theoretical and practical problems posed by intellectual property are increasingly relevant to bioethics and philosophy and public policy, as well as to more established areas of moral and political philosophy. Perhaps this is just to say that the philosophy of intellectual property is coming into its own as a distinct field of intellectual endeavour, providing a place where legal theorists and philosophers can have the sorts of discussions - neither reducible to questions about what the law is, nor wholly divorced from contemporary legal problems - which typify debates about freedom of expression, discrimination and human rights. These are all areas in which legal and philosophical ideas influence each other at the level of method as well as of substance. My hope is that this collection of essays will appeal to those who, whatever their professional specialty or training, share an interest in the philosophy of intellectual property, and that it will build upon and advance existing interdisciplinary dialogue and research in this complex, fascinating, and important area. Authors include John Christman, Stephen Munzer, Alex Rosenberg, Geert Demunijck, Laura Biron, James Wilson . (shrink)

Does the wide distribution of political power in democracies, relative to other modes of government, result in better decisions? Specifically, do we have any reason to believe that they are better qualitatively – more reasoned, better supported by the available evidence, more deserving of support – than those which have been made by other means? In order to answer this question we examine the recent effort by Talisse and Misak to show that democracy is epistemically justified. Highlighting the strengths and (...) weaknesses of their arguments, we conclude that the differences between an epistemic conception of democracy and an epistemic justification of democracy are fundamental to determining the relative attractions of different arguments for democracy, and their implications for actual forms of government. (shrink)

This article argues that people have legitimate interests in privacy that deserve legal protection on democratic principles. It describes the right to privacy as a bundle of rights of personal choice, association and expression and shows that, so described, people have legitimate political interests in privacy. These interests reflect the ways that privacy rights can supplement the protection for people’s freedom and equality provided by rights of political choice, association and expression, and can help to make sure that these are, (...) genuinely, democratic. Feminists have often been ambivalent about legal protection for privacy, because privacy rights have, so often, protected the coercion and exploitation of women, and made it difficult to politicise personal forms of injustice. However, attention to the differences between democratic and undemocratic forms of politics can enable us to meet these concerns, and to distinguish a democratic justification of privacy rights from the alternatives. (shrink)

In a recent article in Respublica, Jesper Ryberg argues that CCTV can be compared to a little old lady gazing out onto the street below. This article takes issue with the claim that government surveillance can be justified in this manner. Governments have powers and responsibilities that little old ladies lack. Even if CCTV is effective at preventing crime, there may be less intrusive ways of doing so. People have a variety of legitimate interests in privacy, and protection for these (...) is important to their status as free and equal citizens. Consequently, though necessary, effectiveness is insufficient to justify CCTV in a democracy. (shrink)

According to Robert Talisse, ‘we have sufficient epistemological reasons to be democrats’ and these reasons support democracy even when we are tempted to doubt the legitimacy of democratic government. As epistemic agents, we care about the truth of our beliefs, and have reasons to want to live in an environment conducive to forming and acting on true, rather than false, beliefs. Democracy, Talisse argues, is the best means to provide such an environment. Hence, he concludes that epistemic agency, correctly understood, (...) supports the legitimacy of democracy. This reply highlights the interest, but also the difficulties, of this argument and, in particular, of its assumptions about epistemic agency, morality and democracy. (shrink)

This paper looks at Alexander Guerrero’s epistemic case for ‘lottocracy’, or government by randomly selected citizen assemblies. It argues that Guerrero fails to show that citizen expertise is more likely to be elicited and brought to bear on democratic politics if we replace elections with random selection. However, randomly selected citizen assemblies can be valuable deliberative and participative additions to elected and appointed institutions even when citizens are not bearers of special knowledge or virtue individually or collectively.

Devrions-nous remplacer les élections par des loteries ? Le célèbre livre de Bernard Manin sur le gouvernement représentatif a appris à beaucoup que les Grecs considéraient les élections comme un moyen aristocratique, et non démocratique, de sélectionner des personnes pour le pouvoir et l'autorité politique, en comparaison avec le tirage au sort, où chacun a une chance égale d'être sélectionné. (Manin 1997) Jusqu'à récemment, cependant, l'idée qu'un engagement envers la démocratie nécessite de remplacer les élections par le tirage au sort (...) a suscité peu d'intérêt parmi les philosophes politiques. (Blondiaux, 2008 ; Courant et Sintomer, 2019) Cela a maintenant changé. (Abizadeh 2020) ( A. Guerrero 2014) (A. Guerrero 2021b ; 2021a) (Landemore 2020) (Owen et Smith 2018) (P.-É. Vandamme et al. 2018). Cet article pose donc la question de savoir si le tirage au sort est plus démocratique que les élections et si, pour cette raison, nous devrions l’utiliser pour compléter ou remplacer les élections ? (shrink)

Must we vote for the common good? This isn’t an easy question to answer, in part because there is so little literature on the ethics of voting and, such as there is, it tends to assume without argument that we must vote for the common good. Indeed, contemporary political philosophers appear to agree that we should vote for the common good even when they disagree about seemingly related matters, such as whether we should be legally required to vote, whether we (...) are entitled to vote secretly rather than openly, or what form of democracy is most morally desirable.1 Such agreement is puzzling, then, given the extensive disagreements that surround it. Hence, the aim of this paper is to consider whether the only morally correct way to vote is to vote for the common good. My hope is that even those who are not persuaded by the answers that I can offer at the moment, will find that the question is less easy to answer than they may have thought, and that the ethics of voting merits more sustained attention than it has received thus far. (shrink)

The core idea of this paper is that we can use the differences between democratic and undemocratic governments to illuminate ethical problems, particularly in the area of political philosophy. Democratic values, rights and institutions lie between the most abstract considerations of ethics and meta-ethics and the most particularised decisions, outcomes and contexts. Hence, this paper argues, we can use the differences between democratic and undemocratic governments, as we best understand them, to structure our theoretical investigations, to test and organise our (...) intuitions and ideas, and to explain and justify our philosophical conclusions in ways analogous to the distinction between consequentialist and deontological theories in moral philosophy, or between liberal and republican principles in political philosophy. In this way – or so I will argue – we can interpret and evaluate competing philosophical claims so that they are morally and politically attractive, as well as logically consistent. Specifically, as we will see, a democracy-centred approach to ethics can help us to distinguish liberal and democratic approaches to political morality in ways that reflect the varieties of democratic theory, and the importance of distinguishing democratic from undemocratic forms of liberalism. (shrink)

This article is part of a symposium on property-owning democracy. In A Theory of Justice John Rawls argued that people in a just society would have rights to some forms of personal property, whatever the best way to organise the economy. Without being explicit about it, he also seems to have believed that protection for at least some forms of privacy are included in the Basic Liberties, to which all are entitled. Thus, Rawls assumes that people are entitled to form (...) families, as well as personal associations which reflect their tastes as well as their beliefs and interests. He seems also to have assumed that people are entitled to seclude themselves, as well as to associate with others, and to keep some of their beliefs, knowledge, feelings and ideas to themselves, rather than having to share them with others. So, thinking of privacy as an amalgam of claims to seclusion, solitude, anonymity and intimate association, we can say that Rawls appears to include at least some forms of privacy in his account of the liberties protected by the first principle of justice. -/- However, Rawls did not say very much about how he understands people’s claims to privacy, or how those claims relate to his ideas about property-ownership. This is unfortunate, because two familiar objections to privacy seem particularly pertinent to his conception of the basic liberties. The first was articulated with customary panache by Judith Thomson, in a famous article on the moral right to privacy, in which she argued that talk of a moral right to privacy is confused and confusing, because privacy rights are really just property rights in disguise. The second objection has long been a staple of leftist politics, and is that the association of privacy with private property means that privacy rights are just a mask for coercive and exploitative relationships, and therefore at odds with democratic freedom, equality and solidarity. If the first objection implies that Rawls is wrong to think that protection for privacy can be distinguished from protection of personal property, the second objection implies that Rawls cannot hope to protect privacy without thereby committing himself to the grossest forms of capitalist inequality. -/- In this paper I will not discuss Rawls’ views of property-owning democracy. However, by clarifying the relationship between claims to privacy and claims to property-ownership, I hope to illuminate some of the conceptual, moral and political issues raised by Rawls’ ideas, and by work on the concept of a property-owning democracy, which he inspired. As we will see, privacy-based justifications of private ownership are not always unappealing, and privacy is sometimes promoted, rather than threatened, by collective ownership. The conclusion draws out the significance of these claims for the idea of a property-owning democracy. (shrink)

Does the wide distribution of political power in democracies, relative to other modes of government, result in better decisions? Specifically, do we have any reason to believe that they are better qualitatively – more reasoned, better supported by the available evidence, more deserving of support – than those which have been made by other means? In order to answer this question we examine the recent effort by Talisse and Misak to show that democracy is epistemically justified. Highlighting the strengths and (...) weaknesses of their arguments, we conclude that the differences between an epistemic conception of democracy and an epistemic justification of democracy are fundamental to determining the relative attractions of different arguments for democracy, and their implications for actual forms of government. -/- . (shrink)

This paper examines MacKinnon’s claims about the relationship of rights to privacy and equality in light of the reasoning in Harris and Bowers. When we contrast the Majority and Minority decisions in these cases, it shows, we can distinguish interpretations of the right to privacy that are consistent with sexual equality from those that are not. This is not simply because the two differ in their consequences – though they do - but because the former, unlike the latter, rely on (...) empirical and normative assumptions that would justify sexual inequality whatever right they were used to interpret. So while I agree with MacKinnon that the Majority’s interpretation of the right to privacy in Harris is inconsistent with the equality of men and women, I show that there is no inherent inconsistency in valuing both privacy and equality, and no reason why we must chose to protect the one, rather than the other. Indeed, an examination of MacKinnon’s article, I suggest, can help us to see why rights to privacy can be part of a scheme of democratic rights, and how we might go about democratising the right to privacy in future. To avoid confusion I should emphasise that my arguments are of a philosophical, not a legal, nature. Thus, I will be ignoring the specifically legal and constitutional aspects of MacKinnon’s article, and of the Supreme Court decisions, in order to bring their philosophical significance into focus. (shrink)

What does it mean to treat people as equals when the legacies of feudalism, religious persecution, authoritarian and oligarchic government have shaped the landscape within which we must construct something better? This question has come to dominate much constitutional practice as well as philosophical inquiry in the past 50 years. The combination of Second Wave Feminism with the continuing struggle for racial equality in the 1970s brought into sharp relief the variety of ways in which people can be treated unequally, (...) while respecting the formalities of constitutional government. Most obviously, the content of laws can mistreat them by wrongfully assuming that they are either threats to others, or that, like children, they need to be protected from harm through paternalistic limitations on their freedom of action. Or, as those concerned with class inequality have long noted, formal equality can create legal requirements, permissions, and prohibitions whose burdens fall predictably, and often solely, on groups who are already marginalised, and most in need of state protection. (Kairys, David 1990) Above all, what these two great political movements made plain, is that a concern for group inequality and, specifically, group injustice must figure in the formulation and adjudication of individual rights, if legal protections for equality are adequately to combat the causes of inequality. Getting to grips with that challenge, it became obvious, required going beyond the familiar analyses of inequality inherited from Liberalism and Marxism, given the many different ways in which people can be equal or unequal.(Hackett and Haslanger 2006, 3 - 15) In the first part of this chapter, I will seek to illustrate these claims, by focusing on efforts to reframe the theory and practice of constitutional equality given demands for sexual and racial equality. I will then show that analytic philosophy has also come to recognise the various non-reducible dimensions of equality in ways that reinforce the claims of critical legal theory, even as philosophers highlight their disconcerting consequences. If equality has multiple irreducible dimensions, conflicts between the legitimate demands of equality are unavoidable features of law and politics, even in the best possible world, and are likely to be particularly painful when set against a background of historical injustice. The chapter concludes with the challenges to democratic constitutionalism, and the scope for constructive responses to those challenges, which the rapprochement between critical and analytic thinking on equality suggests. (shrink)

Are rights to privacy consistent with sexual equality? In a brief, but influential, article Catherine MacKinnon trenchantly laid out feminist criticisms of the right to privacy. In “Privacy v. Equality: Beyond Roe v. Wade” she linked familiar objections to the right to privacy and connected them to the fate of abortion rights in the U.S.A. (MacKinnon, 1983, 93-102). For many feminists, the Supreme Court’s decision in Roe v. Wade (1973) had suggested that, notwithstanding a dubious past, legal rights to privacy (...) might serve feminist objectives, and prove consistent with sexual equality. By arguing that Roe’s privacy justification of abortion rights was directly responsible for the weakness and vulnerability of abortion rights in America, MacKinnon took aim at feminist hopes for the right to privacy at their strongest point. Maintaining that Roe’s privacy justification of abortion is intimately, and not contingently, related to the Supreme Court’s subsequent decision in Harris v. McRae, (1980) MacKinnon concluded that privacy rights cannot be reconciled with the freedom and equality of women, and so can have no place in a democracy.1 In Harris, the Supreme Court held that the State need not provide Medicaid coverage for abortions that are necessary to preserve the health, but not the life, of a pregnant woman, effectively depriving poor women of almost all state aid for abortions.2 Moreover, the Court’s subsequent decision in Bowers v . Hardwick (1986) appeared to confirm the truth of MacKinnon’s observation – though this case concerned gay rights, rather than abortion rights, and occurred several years after MacKinnon’s condemnation of Harris. -/- This paper examines MacKinnon’s claims about the relationship of rights to privacy and equality in light of the reasoning in Harris and Bowers. When we contrast the Majority and Minority decisions in these cases, it shows, we can distinguish interpretations of the right to privacy that are consistent with sexual equality from those that are not. This is not simply because the two differ in their consequences – though they do - but because the former, unlike the latter, rely on empirical and normative assumptions that would justify sexual inequality whatever right they were used to interpret. So while I agree with MacKinnon that the Majority’s interpretation of the right to privacy in Harris is inconsistent with the equality of men and women, I show that there is no inherent inconsistency in valuing both privacy and equality, and no reason why we must chose to protect the one, rather than the other. Indeed, an examination of MacKinnon’s article, I suggest, can help us to see why rights to privacy can be part of a scheme of democratic rights, and how we might go about democratising the right to privacy in future. To avoid confusion I should emphasise that my arguments are of a philosophical, not a legal, nature. Thus, I will be ignoring the specifically legal and constitutional aspects of MacKinnon’s article, and of the Supreme Court decisions, in order to bring their philosophical significance into focus. -/- . (shrink)

Does it matter that almost all juries in England and Wales are all-White? Does it matter even if this result is the unintended and undesired result of otherwise acceptable ways of choosing juries? Finally, does it matter that almost all juries are all-White if this has no adverse effect on the treatment of non-White defendants and victims of crime? According to Cheryl Thomas, there is no injustice in a system of jury selection which predictably results in juries with no minority (...) members so long as this result is not deliberate, and does not adversely affect the treatment of minority defendants and victims of crime. My view is different. In and of itself, I believe, something is wrong with a system of jury selection that predictably results in all-White juries in a diverse society, such as our own. Absent reason to believe that we lack a better alternative to current modes of jury selection, a commitment to democratic government and to the equality of citizens – or so I will argue – condemns existing arrangements as unjust, whether or not they have adverse effects on jury decisions, or on the ways in which our society approaches issues of race and crime. (shrink)

This paper examines the claims that moral objections to the patenting of human genes are misplaced and rest on confusions about what a patent is, or what is patented by a human gene patent. It shows that theese objections rest on too simple a conception of property rights, and the connections betwteen familiar moral objections to private property and moral objections to the patenting of human genes. Above all, the paper claims, objections to HGPs often reflect worries about the lack (...) of democratic oversight, accountability and participation involved in grants of intellectual property. The paper claims that we should take these worries seriously, whether or not we think HGPs immoral. (shrink)

Must privacy and freedom of expression conflict? To witness recent debates in Britain, you might think so. Anything other than self-regulation by the press is met by howls of anguish from journalists across the political spectrum, to the effect that efforts to protect people’s privacy will threaten press freedom, promote self-censorship and prevent the press from fulfilling its vital function of informing the public and keeping a watchful eye on the activities and antics of the powerful.[Brown, 2009, 13 January]1 Effective (...) protections for privacy, from such a perspective, inevitably pose a threat to democratic government via the constraints that they place on the press. Such concerns with privacy must be taken seriously by anyone who cares about democratic government, and the freedom, equality and wellbeing of individuals. But if it is one thing to say that privacy and freedom of expression cannot always be fully protected, it is another to suppose that protections for the one must always come at the expense of the other. After all, the economics of contemporary politics and journalism would seem to be partly responsible for our difficulties in protecting personal privacy while sustaining robust and informative forms of public discourse. [Moore, 2010, 10 -141]2 Most newspapers are loss-making businesses and the need to reduce those losses and, if possible, to turn a profit, make investigative journalism an increasingly expensive proposition as compared to both “comment” and more or less elevated forms of gossip. At the same time, politics has increasingly become the prerogative of a narrow group of people with access to the large sums of money necessary successfully to compete for high office. In those circumstances, the need for critical scrutiny is as important as it is difficult. Revising our ideas about privacy and its protection cannot alone reduce the tensions between freedom of expression and personal privacy typical of our societies, necessary though such revision may be. Moreover, this paper can only touch on some aspects of the ways in which we need to rethink our interests in privacy, in order adequately to reflect people’s diverse interests in freedom of expression, and the important role of a free press to democratic government. Nonetheless, I hope to suggest ways of thinking about people’s claims to privacy which can be generalised fairly readily, and can help us to think constructively about the nature, causes and solutions to some important social and political problems, even if, in its nature, philosophical analysis rarely tells us what to do. More specifically, this paper argues that people are entitled to keep some true facts about themselves to themselves, should they so wish, as a sign of respect for their moral and political status, and in order to protect themselves from being used as a public example in order to educate or to entertain other people. The “outing” - or non-consensual public disclosure - of people’s health records or status, or their sexual behaviour or orientation is usually unjustified, even when its consequences seem to be beneficial. Indeed, the paper claims, the reasons to reject outing, as inconsistent with democratic commitments to freedom and equality, are reasons to insist on the importance of privacy to freedom of expression. While a free press is of the utmost importance to democratic government, it is not identical with the free expression of individuals and, on occasion, the former may have to be constrained in order to protect the latter. [Barendt, 2007, 231]. Hence, the paper concludes, we should distinguish the claims of individuals to publish reports about their lives – even if this necessarily involves revealing the private lives of others – from journalistic claims to publish information about the sex lives of consenting adults. I will start by briefly situating my argument within a democratic approach to privacy, before using the “outing” of Oliver Sipple to examine people’s claims to privacy and their implications for freedom of expression and of the press. I will be assuming that some forms of privacy are legitimate, in order to focus more closely on the question of what information, if any, people may keep to themselves. (shrink)

Citizen assemblies hold out the promise of reviving democracy. However, the ways that they are currently conceptualised and organised limits their egalitarian appeal.

L’article de Nathalie Heinrich sur les « petits malentendus transatlantiques, paru sur Telos le 9 février, soulève quelques questions qui méritent réflexion. Si les « cultural studies » ont leurs défauts, il faut prendre au sérieux leur réflexion sur le naturel, le construit et l’arbitraire, qui bouscule différentes traditions, d’Aristote à Marx et ouvre sur de nouvelles exigences de justice.

Is there a human right to be governed democratically – and how should we approach such an issue philosophically? These are the questions raised by Joshua Cohen’s 2006 article, ‘Is There a Human Right to Democracy?’ – a paper over which I have agonised since I saw it in draft form, many years ago. I am still uncomfortable with its central claim, that while justice demands democratic government, the proper standard for human rights is something less. But, as I hope (...) to show, the reasons for that discomfort are occasioned less by the thought that democracy may not be a human right than by the very significant gaps in our understanding of rights which debates about the human rights status of democracy exemplify. (shrink)

James Rule is puzzled by the ‘idiosyncratic’ approach that I take to the philosophical study of privacy. As evidence for this idiosyncracy, he cites my relative indifference to the distinction between consequentialist and deontological perspectives on privacy although these differences are proof of ‘intricate, yet enormously consequential intellectual tensions’. My choice of philosophical topics is ‘unsystematic’ and more a reflection of my own ‘intellectual hobby-horses’ than a ‘well-worked-out view of what students most need to know’. Finally, Rule concludes, because ‘the (...) most important privacy questions are excruciating’, we need ‘more systematic guidance than is provided here’. I am grateful to the editors for the chance to respond to these complaints. (shrink)

It is especially hard, at present, to read the newspapers without emitting a howl of anguish and outrage. Philosophy can heal some wounds but, in this case, political action may prove a better remedy than philosophy. It can therefore feel odd trying to think philosophically about surveillance at a time like this, rather than joining with like-minded people to protest the erosion of our civil liberties, the duplicity of our governments, and the failings in our political institutions - including our (...) political parties – revealed by the succession of leaks dripping away this the summer. Still, philosophy can help us to think about what we should do, not merely what we should believe. Thus, in what follows I draw on my previous work on privacy, democracy and security, in order to highlight aspects of recent events which – or so I hope – may prove useful both for political thought and action. (shrink)

This is part of a symposium on conscientious objection and religious freedom inspired by the US Catholic Church's claim that being forced to pay for health insurance that covers abortions (the effect of 'Obamacare')is the equivalent of forcing pacifists to fight. This article takes issue with this claim, and shows that while it would be unjust on democratic principles to force pacifists to fight, given their willingness to serve their country in other ways, there is no democratic objection to forcing (...) those who believe abortion to be murder to pay for health insurance coverage that includes abortion. (shrink)

Racial discrimination uses race as grounds to discriminate in the treatment owed to others; sexual discrimination uses people’s sexual features as grounds for determining how they should be treated compared to others. Analogously, statistical discrimination treats statistical inferences about the groups to which individuals belong as grounds for discriminating amongst them in thought, word and deed. Examples of statistical discrimination include the employer who won’t hire women of childbearing age, because they are likely to take maternity leave at some point (...) in their careers; or insurers who wish to charge more to young drivers than to more experienced ones, because they are more likely to have accidents than the latter – or to favour women over men in the cost of premiums for similar reasons. Finally, a famous – infamous – example of statistical discrimination is racial profiling for police purposes, where statistical evidence of differential propensities to crime are used to justify preventive police measures, such as ‘stop and search’, which mainly target young black men, and other racialized minorities. The philosophical appeal of the concept of statistical discrimination is fairly easy to see: it draws our attention to the way that probabilistic claims figure, or might figure, in the distribution of social costs and benefits such as jobs, security, insurance. It therefore gives us a way to test our moral intuitions across different cases, enables us to see how far our moral judgements can be generalised, and whether they have been affected by particularly emotive examples, or by the particular features of a real or hypothetical case. But does that mean that statistical discrimination is unproblematic? This article takes issue with some arguments of Kasper Lippert Rasmussen on the topic. (shrink)

Les deux articles d’Eric Fassin, et la réponse de mon collègue Alain Policar, apportent intelligence et lucidité sur un sujet difficile, et un débat pénible que l’on peine à voir dans la polémique de Marianne (n° 1152,2-18 avril), ni malheureusement dans quelques articles sur ces sujets parus dans l’Obs. Pour une non-française, il n’est pas toujours facile de comprendre une lutte, plutôt qu’un ‘débat’, autour du mot ‘race’, qui semble spécifiquement française, mais où néanmoins les idées et textes américains (et (...) parfois anglais) font partie du champ de bataille. J’espère que cette intervention, motivée par la critique de Fassin par Policar, peut être utile même si elle manque de l’élégance et de la maitrise du contexte intellectuel français. (shrink)

This paper examines Jeremy Waldron’s ‘core case’ against judicial review. Waldron’s arguments, it shows, exaggerate the importance of voting to our judgements about the legitimacy and democratic credentials of a society and its government. Moreover, Waldron is insufficiently sensitive to the ways that judicial review can provide a legitimate avenue of political activity for those seeking to rectify historic injustice. While judicial review is not necessary for democratic government, the paper concludes that Waldron is wrong to believe that it is (...) a threat to democracy. (shrink)

Lisa Hill’s response to my critique of compulsory voting, like similar responses in print or in discussion, remind me how much a child of the ‘70s I am, and how far my beliefs and intuitions about politics have been shaped by the electoral conflicts, social movements and violence of that period. -/- But my perceptions of politics have also been profoundly shaped by my teachers, and fellow graduate students, at MIT. Theda Skocpol famously urged political scientists to ‘bring the state (...) back in’ to their analyses, and to recognise that political identities, interests and coalitions cannot be read off straightforwardly from people’s socio-economic position. In their different ways, this was the lesson that Suzanne Berger, Charles Sabel and Joshua Cohen tried to teach us, emphasising the ways that political participation and conflict, themselves, can change people’s identities, their sense of what it is desirable and possible, and their ability to recognise, or oppose, the freedom and equality of others. -/- I do not therefore take it as self-evident that the poor and seemingly powerless should be politically apathetic, unwilling to vote, or incapable of imagining a political solution to at least some of the problems confronting them. Nor do I suppose that non-voters are all-of-a-piece, and that their shared interests are, inevitably, more significant, morally or politically, than those which divide them. Such assumptions seem mistaken in the case of voters, and I see no reason why they should be true of non-voters. The people we find in these categories are not predestined to be in one rather than the other; they do not always stay where they start off; and at an individual level, the reasons why people fall into one group, rather than another, are likely to be complex and sometimes unpredictable. -/- Above all I see nothing in a commitment to democratic government, understood realistically or in more idealistic terms, that requires us to treat raising turnout at national elections (once every four years or so) as of such moral or political importance that we should make it legally mandatory. Realistically, it is an open question how far the ballot box is, for most people, the path to empowerment – important though it is that people should have an equal right to vote and to stand as candidates at national elections. On a more idealistic view of democratic politics it is hard to avoid the thought that the importance of national elections to self-government, posited by proponents of compulsory voting, reflects an alienated and alienating view of democracy, in which the choice of our leaders becomes more important than the development and exercise of our own capacities to lead; and in which our awe at the power our leaders might wield is matched only by our inability to imagine less intimidating, distant and centralised forms of politics. -/- But before saying a little more about these points, and their significance for compulsory voting, I would like to dispel some misunderstandings or misrepresentations of my views in Hill’s essay. I do not believe socio-economic disparities in turnout are not worrying for democratic politics, nor do I believe that abstention is generally synonymous with consent. I do not assume that people have a right not to vote, but try to explain why moral and legal rights to abstain are an important part of democratic politics, including electoral politics. (shrink)

According to Corey Brettschneider, we can protect freedom of religion and promote equality, by distinguishing religious groups’ claims to freedom of expression and association from their claims to financial and verbal support from the state. I am very sympathetic to this position, which fits well with my own views of democratic rights and duties, and with the importance of recognizing the scope for political choice which democratic politics offers to governments and to citizens. This room for political choice, I believe, (...) is necessary if people are to have any chance of reconciling the conflicting moral and political obligations they are likely to face, however idealized our conception of democracy or morality. Granted that no amount of personal and political choice will ever guarantee that we do not encounter tragic choices, and painfully conflicting moral demands, it is an important feature of democracy – or so I believe – that its rights reflect the importance of mitigating these conflicts so that people are able, as a rule, to act as they ought, so that they do not experience their moral sentiments, beliefs and capacities simply as grounds for recrimination, alienation and despair. I therefore believe that democracies have good reason not to force the consciences of the undemocratic and the intolerant, where it is possible to accommodate such people without threatening the rights of others. However, the fact that I share many of Brettschneider’s intuitions and beliefs does not mean that I share them all. In particular, I find his conception of democracy unduly narrow, and unduly based on a rather idealized conception of the American constitution which is unlikely to appeal to those whose conceptions of democracy are more republican, more socialist, more pragmatic and more international than his. I have explained these worries elsewhere and drawn out some of their implications for his arguments about privacy and judicial review. There is no need to repeat them here. I will also set to one side my worries about his uninflected, overly abstract and rather reified characterization of the State, in the hope that others will discuss this and that, in the end, a more nuanced conception of the State and a more lively appreciation of the conflicting people, institutions, histories and norms which make up most states, will prove consistent with his arguments. Finally, I do not propose to enter into a detailed discussion of the difficulties of Brettschneider’s overly abstract and reified conception of State ‘speech’ and ‘expression’ which, while motivated by the language of American constitutionalism, appears to cover pretty much anything a government might do, from raising and spending taxes, to accepting judicial interpretations of contested constitutional provisions, or to affirmatively pronouncing on the goals that will animate its legislative agenda and its aspirations for citizen’s lives. Again, while I would have wished for a more nuanced and analytical discussion of so central a concept as ‘expression’ and, in particular, expression by ‘the State’, I am uncertain that anything fundamental in Brettschneider’s account of citizen rights and duties would be altered in the process. Instead, then, I want to focus on points in Brettschneider’s argument that intrigue, and sometimes puzzle, me the most and where issues of nuance and clarification might make a substantial difference to our views of equality and religious freedom. (shrink)

What can philosophy tell us about ethics and public policy? What can the ethics of public policy tell us about philosophy? Those are the questions that Jonathan Wolff addresses in his wonderful little book. At one level, of course, the answer is straightforward – ethics is a branch of philosophy, so philosophy can tell us about the ethics of public policy, understood as a matter of deciding ‘what we should do' in a manner that is institutionalised and collectively binding. But (...) at another level, as Wolff shows, there is something deeply puzzling about the idea that philosophy can tell us anything very useful about public policy and about the ethical dilemmas that it raises. Those dilemmas arise as a result of political constraints, struggles and resources which generally have little to do with philosophy and, for the most part, rather little to do with ethics. So what, exactly, should philosophers expect from an engagement with public policy? (shrink)

This chapter is concerned with the role of democracy in preventing terrorism, identifying and apprehending terrorists, and in minimizing and alleviating the damage created by terrorism.1 Specifically, it considers the role of democracy as a resource, not simply a limitation, on counterterrorism.2 I am mainly concerned with the ways in which counterterrorism is similar to more familiar forms of public policy, such as the prevention of crime or the promotion of economic prosperity, and so nothing that I say turns on (...) being able sharply to distinguish terrorism from other bad things that democracies have to face. I will not, then, address the extensive debate on the best way to define terrorism.3 However, I assume that terrorists characteristically seek to terrorize people in order to secure their particular ends. What forms that terror takes, what people terrorists seek to terrorize, and what ends terrorists seek to promote I assume to be indeterminate, open to change, and a matter for empirical investigation. However, I take it that the IRA, Baader Meinhoff, and the Red Brigade, as well as certain animal rights groups in the United Kingdom and certain anti-abortion groups in the United States, are examples of terrorist groups and individuals. In short, I will be assuming that terrorism is principally characterized by the choice of means to given ends, rather than by the ends themselves, and that it is the choice of means, rather than the favored ends, that makes terrorism so problematic from a democratic perspective. However good the goal, terrorizing a population—whether or not this involves killing the innocent—is morally wrong and, from a democratic perspective, an abuse of power over the lives of others. While the use of terror may indicate that the ends sought by terrorists are such that people cannot be expected to support them voluntarily, there is no justification for supposing that the ends of terrorism must be morally or politically unacceptable simply because the means are both. It is a staple of ordinary life—not merely of philosophical examples—that people are sometimes unjustified in the means they use in order to accomplish perfectly acceptable ends. So, the ends terrorists seek are, or might become, morally or politically acceptable without in any way altering our objections to the use of terror as a tool for promoting them. (shrink)

What is the role of lay deliberation – if any – in health-care rationing, and administration more generally? Two potential answers are suggested by recent debates on the subject. The one, which I will call the technocratic answer, suggests that there is no distinctive role for lay participation once ordinary democratic politics have set the goals and priorities which reform should implement. Determining how best to achieve those ends, and then actually achieving them, this view suggests, is a matter for (...) experts, armed with the best evidence available to them, both of the subject area involved, and of management and administrative excellence. -/- By contrast, the second, deliberative, view holds that lay deliberation has an important role in the administration and execution of government policy, both because these latter inevitably have a political element which needs to reflect democratic norms and values, and because lay people are, themselves, a source of information, even of wisdom, that experts will want to use in fulfilling their professional responsibilities. Recent debates on the value of lay participation in healthcare provision can illuminate the strengths and weaknesses of both approaches, as can the experience of NICE. So, I will start by examining two articles by Albert Weale, which attempt to clarify the role that lay deliberation should have in healthcare, before turning to the dilemmas for both the technocratic and deliberative views which emerge from the experience of NICE. (shrink)

This article forms part of a tribute to Anita L. Allen by the APA newletter on Philosophy and Law. It celebrates Allen's work, but also explains why her conception of privacy is philosophically inadequate. It then uses basic democratic principles and the example of the secret ballot to suggest how we might develop a more philosophically persuasive version of Allen's ideas.