Thesis (Ph. D.)--University of Wisconsin--Madison, 1968. / Typescript. Vita. eContent provider-neutral record in process. Description based on print version record. Includes bibliographical references.

My dissertation is motivated by the following observation: while we care very much about the outcomes of the democratic process, there is widespread uncertainty about ex ante how to produce them - and quite often there is also disagreement and uncertainty about what they are in the first place. Consequently, unless we have a definite idea what "better decision-making" might be, it is not obvious which institutional reforms or changes in democratic structures would actually promote it. Democracy is a wide concept, and not all institutional constellations and rules and regulations that can be called democratic function equally well. In this dissertation therefore I offer a specific model of democracy - "Experimental Democracy" - that unites the view that the quality of decisions matter, with taking into account the circumstances of uncertainty and disagreement that define political problems. On this account, a desirable political mechanism is one that realizes an experimental method of policy-making directed at solving problems, such that we can expect it to make progress over time, even though we cannot rule out that it will get things wrong - possibly even frequently. I also show how democracy may best realize such an experimental method, and which particular institutional features of democracy could serve this purpose. The argument in the dissertation proceeds as follows. In the first part I develop a theory of the justifiability of political authority in the sense outlined above: a theory that is sensitive to the outcome concerns that many people share, but recognizes the fundamental disagreement surrounding this question. I establish that instrumental considerations should be of crucial importance when we evaluate political authority. Here I argue against pure proceduralist theories that see the outcome dimension as secondary. However, the facts of disagreement and uncertainty about the ends of politics, as well as concrete policy, do seem to pose a problem for any instrumental justification. In response I outline a pragmatic or experimental theory of political authority, which focuses precisely on the capacity of a political procedure to solve political problems under uncertainty. Just as in many other fields of inquiry experimentation and adaptation are seen as the adequate responses to uncertainty, I argue, an experimental and adaptive mode of policy-making is the best response to political uncertainty. In the second part I answer the question which form of democracy would best realize the ideal of experimental policy-making. Subsequently, we should evaluate democratic institutions mainly by their capacity to enable successful experimentation and adaptation. Here, contrary to popular "wisdom of crowds" arguments, I argue that since no single decision procedure can be expected to be reliable across the board, a justified political system may have to employ a plurality of first-order decision-making mechanisms. However, as I show for this to work, these mechanisms must be subject to effective democratic control. The key function of democratic institutions here is that of feedback, in order to enable successful adaptation. Finally, I offer some concrete examples how the functional requirements of a successful experimental strategy of policy-making can be institutionally realized within democratic systems.

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As the title indicates, this three-essay dissertation explores the relations between value pluralism and liberal democracy. The first essay, “Negative versus Positive Freedom: Making Sense of the Dichotomy,” starts with the puzzling appeal of the negative-versus-positive-freedom dichotomy. Why has this distinction, despite forceful criticisms against it, continued to dominate mainstream discourses on freedom in contemporary political theory? Does it grasp something fundamental about the phenomenology of freedom? In this essay I examine four main approaches to making sense of the appeal of this dichotomy, and the challenges they each face. Both the conventional, naive contrast between “freedom from” and “freedom to,” and the revisionist strategy to distinguish between the “opportunity-concept” and the “exercise-concept” of freedom, upon close scrutiny, fail to survive MacCallum’s triadic argument against all dichotomous views on the concept of freedom. The third account, which reduce the negative/positive dichotomy of freedom to the divide between “phenomenal” and “nounemal” conceptions of the self, or of the range of preventing conditions, is both interpretively misleading and conceptually uninformative, as I illustrate by using Berlin’s discussion on self-abnegation as an example. In the fourth place, I analyze why both the historical bifurcation account that take the negative/positive dichotomy of freedom as merely genealogical, on the one hand, and the republican critique of it based on the presumably sublating conception of non-domination, on the other hand, are unsatisfying. Finally, I argue that grounding the negative/positive dichotomy of freedom on the idea of value pluralism avoids the pitfalls of those approaches examined. According to this account, the dichotomized instantiation of freedom is necessary insofar as we live not in isolation but with other moral agents. The “negative” freedom instantiated in the access to an extensive sphere of permissible choices and actions, and the “positive” freedom instantiated in the access to collective decision-making and democratic self-government, reflect two equally genuine yet incommensurable modes of freedom as a basic value. Many believe that value pluralism and liberalism are ultimately incompatible, however, since liberalism implies the prioritization of liberal values over other basic values, which is contradictory to the value pluralist idea that all basic values are equally genuine and incommensurable. The next two essays take up this challenge, arguing on the contrary that a persuasively elaborated version of value pluralism is not only compatible with liberal commitments, but can also provide distinctive grounds for liberal democracy and have significant political implications. In the second essay, “Value Pluralism and Its Compatibility with Liberalism,” I explain the methodology of my argument, elaborate three key concepts underlying value pluralism – value objectivity, value incompatibility, and value incommensurability – and then develop an account of modal heterogeneity of value instantiation, as opposed to valuative hierarchy. Whereas valuative hierarchy is in tension with value incommensurability, the idea of modal heterogeneity allows that different values have different modes of instantiation that warrant differentiated prioritization of certain values in relevant practical contexts, without implying anything about the comparative moral worth of relevant values. I use a mathematical analogy to illustrate the modal heterogeneity of value instantiation, as well as how we may accord freedom a special institutional role on the basis of its modal specialty vis-à-vis other basic values, rendering liberalism compatible with value pluralism. The argument is completed in the third essay, “Value Pluralism, Liberal Democracy, and Political Judgment,” where I compare my account based on the idea of modal heterogeneity, developed in the second essay, with three existing versions of liberal pluralism. Whereas Berlin’s argument from choice, Crowder’s proposal of pluralist virtues, and Galston’s presumption of expressive liberty all fail to pass either the Jump Test or the Trump Test, my modal account overcomes these two basic difficulties faced by liberal pluralism. The rest of the essay discusses three main political implications of the modal account of liberal pluralism. First, it helps us better understand the nature of demarcating and overstepping the so-called “frontiers” of a “negative” area of permissible choices and actions free from interference, or put another way, of balancing the protection of civil liberties and rights, on the one hand, with the procurement of certain important social goods through policies, on the other hand. Second, the modal account entails the dichotomization argument for democracy, and as a consequence supports not only liberalism, but liberal democracy. Recognizing the tension between negative and positive modes of freedom as immanent to the dynamic of liberal democracy, value pluralists nonetheless have reason to cherish, rather than to decry, such dynamic. Third, the modal account also suggests we appreciate the contentious yet indispensible role of political judgment in democratic life, and attend to the normative theorizing of its implications. On the one hand, it recommends institutional designs that diversify forms of political decision-making, such as by introducing adequate mechanisms of checks and balances and establishing relevant sites of expertise. On the other hand, it calls for the appreciation of the ideal of statespersonship, even in a liberal democratic society.

This dissertation explores contemporary American unwritten constitutionalism in three areas of public law: constitutional theory, election law, and administrative law. Drawing on methods familiar to political theory—analytic political philosophy and intellectual history—it offers a way of analyzing constitutional phenomena beyond legal reasoning tethered to text. The first essay uses social philosophy to build a theory of constitutional norms that explains their salient features and functions. The second essay builds a framework for understanding the concept of representation in the law of democracy. It uses political theory to reveal the latent normative questions animating election law doctrine. The third and final essay recovers the lost and contested origins of presidential administration during the Reagan administration. It shows how the combined efforts of executive branch lawyers, judges, and academics decisively brought the administrative state under presidential control and laid the foundations for the emergence of a plebiscitary president. Together these essays provide proof of concept for the dissertation’s central methodological claim: the need to move beyond text and legal reasoning in understanding American constitutionalism.

The overall aim of this thesis is to assess the legitimacy of constitutional laws and bills of rights within the framework of procedural epistemic democracy. The thesis is divided into three sections. In the first section, I discuss the relevance of an epistemic argument for democracy under the circumstances of politics: I provide an account of reasonable disagreement and explain how usual approaches to the authority of decision-making procedures fail to take it seriously. In the second part of the thesis, I provide an account of the epistemic features of democracy and of the requirements of democratic legitimacy. I develop a revised pragmatist argument for democracy which relies on three presumptive aims of decision-making: justice, sustainability and concord. In the third and last section, I first argue for the desirability of constitutionalism. I then explain why constitutionalism, as it is usually understood, is incompatible with my procedural epistemic account of democratic legitimacy. In the last chapter, I offer a two-pronged solution to the apparent incompatibility of constitutionalism and epistemic democracy. I first argue for the appropriateness of political constitutionalism, as opposed to legal constitutionalism, in understanding the relationship between rights and democracy. I then provide an account of rights protection and judicial review compatible with epistemic democratic legitimacy. Finally, I use the notion of pragmatic encroachment to explain how constitutional laws can achieve normative supremacy through the increased epistemic credentials of the procedure.

This study critically and systematically analyses the purported democratic values of freedom and equality with a view to clarifying the meaning of the concepts of democracy, freedom and equality; and examining the nature of the relations between kinds of freedom and kinds of equality, their association with democracy, and assessing their reconcilability within the two broad schools of democratic theory, namely, Anglo American democratic theory and Continental democratic theory. Put slightly differently, the issue is whether freedom and equality are mutually compatible or incompatible within democratic contexts. The analysis necessitates exploring the possible reason or reasons for the reconcilability or incompatibility of freedom and equality. Hence, the arguments in democratic literature relevant to the meanings of freedom and equality, and the relations between them will be examined. The first set of arguments concern the question of whether kinds of freedom endanger kinds of equality, and conversely, whether kinds of equality erode or hamper kinds of freedom. The relation existing between freedom and equality, and equality and freedom, in both instances purport to demonstrate the tension existing between them in theory as well as in practice. The second set of arguments concern the question of whether kinds of freedom promote kinds of equality, and conversely, whether kinds of equality further kinds of freedom. The relation in both instances is deemed to demonstrate the affinity between freedom and equality, and equality and freedom. An attempt will thus be made to address the issue of the seemingly confusing array of meanings of democracy, freedom and equality, and the potentially problematic relations between them, and particularly those between freedom and equality as represented by the two sets of arguments within appropriate democratic contexts. The study will endeavour to examine the analytic and synthetic interplay of meanings and relations, their nature and compatibility or incompatibility, and the possible reasons for this state of affairs, in an attempt to identify and address the perceived misapprehensions concerning their meanings and relations in democratic literature. / Political Sciences / D. Litt. et Phil. (Politics)

This study critically and systematically analyses the purported democratic values of freedom and equality with a view to clarifying the meaning of the concepts of democracy, freedom and equality; and examining the nature of the relations between kinds of freedom and kinds of equality, their association with democracy, and assessing their reconcilability within the two broad schools of democratic theory, namely, Anglo American democratic theory and Continental democratic theory. Put slightly differently, the issue is whether freedom and equality are mutually compatible or incompatible within democratic contexts. The analysis necessitates exploring the possible reason or reasons for the reconcilability or incompatibility of freedom and equality. Hence, the arguments in democratic literature relevant to the meanings of freedom and equality, and the relations between them will be examined. The first set of arguments concern the question of whether kinds of freedom endanger kinds of equality, and conversely, whether kinds of equality erode or hamper kinds of freedom. The relation existing between freedom and equality, and equality and freedom, in both instances purport to demonstrate the tension existing between them in theory as well as in practice. The second set of arguments concern the question of whether kinds of freedom promote kinds of equality, and conversely, whether kinds of equality further kinds of freedom. The relation in both instances is deemed to demonstrate the affinity between freedom and equality, and equality and freedom. An attempt will thus be made to address the issue of the seemingly confusing array of meanings of democracy, freedom and equality, and the potentially problematic relations between them, and particularly those between freedom and equality as represented by the two sets of arguments within appropriate democratic contexts. The study will endeavour to examine the analytic and synthetic interplay of meanings and relations, their nature and compatibility or incompatibility, and the possible reasons for this state of affairs, in an attempt to identify and address the perceived misapprehensions concerning their meanings and relations in democratic literature. / Political Sciences / D. Litt. et Phil. (Politics)