Rationality and Constraints on Democratic Rule

  • Jeffrie G. Murphy
Part of the Philosophical Studies Series book series (PSSP, volume 54)


There are various reasons why one might prefer democratic rule over alternative institutions.1 One might believe it is the most rational way to maximize preference satisfaction, or that it does the best job of giving persons the socially beneficial illusion that preference satisfaction is being maximized, or that it is the fairest way to make collective social decisions, or that it gives persons the socially beneficial illusion of being the fairest, or that it is—though highly defective on grounds of both utility and fairness—still less defective than any alternative mechanism, or that certain societies are simply used to it and any radical change would be disruptive, or some combination of all of these considerations.


Moral Theory Judicial Review Reflective Equilibrium Coherence Model Equal Protection 
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  1. 1.
    The second part of this essay has previously appeared in a slightly different form as “Justifying Departures from Equal Treatment” in Journal of Philosophy, vol. 71, no. 10, (October 1984): 587–593. Versions of the entire chapter were presented at a Liberty Fund conference on rationality in October 1984 and at a philosophy of law symposium at the Eastern Division meetings of the American Philosophical Association in December 1984.Google Scholar
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    Fourteenth Amendment adjudication, and the doctrine of “substantive due process” that it produced, has had a fascinating history. In the famous (or notorious) case of Lochner v. New York (198 U.S. 45 [1905]), the court held invalid—on grounds that it encumbered the fundamental right of contract—a New York law that limited the number of working hours in a week. This same philosophy later inclined the court to hold invalid much of FDR’s legislation designed to promote economic recovery—a fact that prompted FDR to attempt to “pack” the court, thereby scaring the court away from further substantive due process decision of this nature. As substantive due process reemerged, its focus shifted away from economic liberties as fundamental rights to such personal rights as privacy. For a good general survey of these matters, see John E. Nowak et al., Constitutional Law, 2nd ed. (St. Paul: West Publishing Co., 1983), pp. 425ff.Google Scholar
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    One way of interpreting Kant’s Categorical Imperative is as an instantiation of the Principle of Sufficient Reason: claim no liberty for yourself that you could not, as a rational being, extend to relevantly similar persons in relevantly similar circumstances. This appears to make good on Kant’s promise to derive the ultimate principle of morality from the concept of rationality. A problem with this, however, is that the concept of relevant similarity will no doubt have to be explicated in moral terms—a circularity that will prevent the Categorical Imperative from being the ultimate principle of morality.Google Scholar
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    I have attempted to apply the criterion of compelling state interest in evaluating state aims for the practice of punishment. See my “Retributivism, Moral Education, and the Liberal State” reprinted in this volume. For a good general discussion of the various levels of judicial scrutiny (including the emerging “intermediate”standard of review), see Nowak, Constitutional Law, pp. 590ff.Google Scholar
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    It might be possible to generate some constraints on democratic rule from a model of pure rational self-interest—e.g., that adopted by James Buchanan and Gordon Tullock in Cakulus of Consent (Ann Arbor: University of Michigan Press, 1967), It is an interesting question, of course, whether the constraints or rights so derived would count as morally fundamental in any interesting sense or if they would map in any interesting way on existing constitutional rights.Google Scholar
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    Some interests that seem to have been identified by the court as compelling are the following: national security and public safety (Karematsu v. U.S. 323 U.S. 214 [1944]); maternal health (Roe v. Wade, 410 U.S. 113 [1973]); and future life as represented in a human fetus (Roe V. Wade). The courts also seem to recognize as a compelling interest the protection of those rights that have been identified as fundamental.Google Scholar
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    Meiklejohn’s theory of the First Amendment was that constitutionally protected speech is essentially political speech—speech that has some important role in the political processes of our democracy. Only the exercise of speech of this nature could be said to involve a fundamental right. See his Free Speech and Its Relation to Self-Government (New York: Harper and Row, 1948).Google Scholar
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    Ian Hacking, “Language, Truith and Reason,” in Rationality and Relativism, ed. Martin Hollis and Steven Lukes (Cambridge: MIT Press, 1982), pp. 48–66.Google Scholar
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    In his 1980 Dewey Lectures, Rawls acknowledges that his model of rational moral choice is relativized to a particular culture and history. He argues that this is not a shortcoming, however, so long as one realizes that the point of his theory is to articulate the moral principles that form the basis of that culture and history and “not . .. to find a conception of justice suitable for all societies regardless of their particular social or historical circumstances.” I am not sure if this represents a scaling down of the ambitions Rawls originally held for his theory of justice as fairness or if this relativity was a part of the theory all along. (If the latter, then my earlier identification of the original position model as “foundationalist” was mistaken.) In any event, the path now being suggested by Rawls seems very promising (if less Kantian) and merits detailed study and consideration. See John Rawis, “Kantian Constructivism in Moral Theory: The Dewey Lectures 1980,”The Journal of Philosophy, Volume LXXVII, Number 9, September, 1980(the entire issue). Let me again emphasize how keenly I am aware that Rawls’s theory deserves a much more careful treatment than I am able to accord it in this essay.Google Scholar

Copyright information

© Springer Science+Business Media Dordrecht 1992

Authors and Affiliations

  • Jeffrie G. Murphy
    • 1
  1. 1.College of LawArizona State UniversityTempeUSA

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