Government for the people: The primacy of substance in the justification of democracy

Many political philosophers believe that sometimes we ought to tolerate substantive injustice for the sake of the intrinsic importance of democracy. In this thesis, I argue that they are mistaken. The substantive justice of outcomes has primacy over the putative intrinsic procedural justice of democracy. This is a very strong form of instrumentalism: if we face a choice between a minor substantive injustice and massive political inequality, then we ought to accept the political inequality. The thesis is divided into three parts. In the first part, I lay out the conceptual landscape for the discussion. I argue that assertions about justice are reducible to assertions about rights and that assertions about rights can be appropriately dealt with by the Hohfeldian analytic framework. Instrumentalists would gain from using this framework. The Primacy of Substance (POS) is true if people lack non-derivative individual or group democratic claim rights to do injustice. I defend my thesis by appealing to intuitions about injustices committed by gangs. I argue that gangs do not have rights to do injustice and this does not change merely because they choose to do the injustice democratically. Many philosophers accept this for severe injustices, but deny it for mild injustices. I argue that those positions are in error. People do not have democratic rights to do even mild substantive injustice. In the second part, I argue that popular intrinsic proceduralist arguments from equal respect and autonomy pose no threat to the POS. An appeal to equal respect in political philosophy, on one sense of respect, is equivalent to an appeal to the requirements of political morality. Interpreted in this way, in the absence of further argument, the appeal to equal respect begs the question against the POS. The POS is a theory about the requirements of political morality and so about the requirements of equal respect. Other arguments from equal respect rely on the appeal to contingent social beliefs which may be associated with political power. If this argument were sound, then there could be rights to do severe injustices such as rape and murder. Since people cannot have rights to do these things, contingent social beliefs cannot ground rights in the way suggested and so cannot ground democratic rights. Arguments from autonomy also do not threaten the POS. People's rights to act autonomously stop at the rights of others. This is true from the point of view of a variety of different theories of autonomy. Finally, one cannot, contra prominent arguments defend intrinsic proceduralism on the basis of what I call Truth Restricting Intrinsic Proceduralism (TRIP), which holds that people have democratic rights to decide on reasonably contentious matters of substantive justice. When we are responding to the fact that someone reasonably believes that a law ought to be enacted, we ought to pay attention to the content of that belief. Intrinsic proceduralism asks us to pay attention to the fact that they reasonably believe it. This is a mistake. Even if we accept that people have a right to impose their reasonable view, many voters in the real world are not reasonable, many people reasonably deny the reasonableness of others, and many people reasonably deny the proposition that people have a right to impose their reasonable view. Thus, even if we accept the premise, it does not imply that we ought to use democracy in the real world or in a large number of close possible worlds. Moreover, all of the most prominent arguments for TRIP have failed. Finally, proponents of TRIP have failed to recognise that it entails the democratic right to do severe substantive injustice. Since we ought to reject all theories which have this implication, we ought to reject TRIP. There is no remaining way to refute the POS.