Compromise

NOMOS LIX

Jack Knight

• Publisher: NYU Press
• Year: 2018
• ISBN:
  9781479818020
• Topic: Política y relaciones internacionales
• Subtopic: Historia y teoría política

A distinguished group of scholars explores compromise in contemporary affairs Do lawmakers have a greater ethical responsibility to compromise than ordinary citizens? How does one rectify what is at stake when lawmakers concede to compromise for the sake of reaching resolution? Is compromise necessarily equalizing and is it a reasonable mode of problem solving and dispute resolution? In this latest installment from the NOMOS series, distinguished scholars across the fields of political science, law, and philosophy tackle the complex set of questions that relate to the practice of compromise and its implications for social and political life in modern societies. The volume, edited by Jack Knight, brings together a range of perspectives – in both disciplinary and substantive terms – on representation, political morality, disagreement, negotiation, and various forms of compromise. The ten essays reflect a variety of considerations across interdisciplinary lines, and provide a new and thought-provoking discussion of the policy, practice, and philosophy of compromise, covering a number of specific topics including alternative dispute resolution (ADR) and conscientious objection. Examining these issues and more, Compromise offers new and thought provoking insights into the pressing issue of the importance of compromise in social and political affairs.

1

The Problem of Clean Hands

Negotiated Compromise in Lawmaking

Eric Beerbohm

The problem of dirty hands isn’t ours. It gets its grip from the point of view of the official who acts in our name. Suppose a coalition of lawmakers votes for an unjust bill. In their floor speeches, they stress that they are public servants, acting on behalf of their constituency. But don’t lose any sleep over this vote. The textbook model of dirty hands denies that you bear any responsibility. It doesn’t matter whether you advocated for the bill, or that you voted for a candidate who was committed to enacting this policy. You and I are morally insulated from the actions of our lawmakers. Performing unjust actions in our name but without commensurate blame is part of their job description. To refrain would reveal a grating self-preoccupation. They are doing us a favor, shielding us from the blame and resentment of our fellow citizens who have been wronged. From the perspective of the democratic citizen, there doesn’t look to be any moral problem here, but a convenient solution. We can aid and abet the passage of an unjust law without any liability. We don’t own the logrolling, horse-trading, or the floor votes of our representatives. They do.

In framing the problem this way, I’ve revealed my hand. Citizens can’t escape responsibility by authorizing another agent to do their dirty work. An agency relationship with injustice may well compound their blameworthiness. Nor should elected officials act in ways that are, as Bernard Williams politely puts it, “morally disagreeable.”1 When they “hustle[], lie[] and intrigue[] for us,” it’s implausible to think that they alone can retain responsibility for their public acts.2 We can co-own responsibility for an unjust law. I will assume that any plausible concept of democracy will acknowledge that moral liability is shared in some way. The premise of insulation is faulty, and it makes the begrudging acceptance of the dirty-handed lawmaker unsound. There isn’t a genuine problem here.3 I’m going to ask you to imagine it away.4 But dissolving one puzzle can create another.

The problem that emerges is ours. It’s owned by democratic citizens concerned with complicity in legislated injustice. If we place special weight on the fact that we can be used as tools of injustice, this agent-relative concern can seem to threaten a central feature of lawmaking institutions. Call the practice of compromise that set of rules that bear upon a process of mutual concessions that aims at joint uptake of a legislative solution. We tend to assume that politics demands some willingness to engage in adjustments and even concessions to other viewpoints within a legislative body. This seems to hold even when lawmakers are in the commanding position to ignore their outvoted colleagues. My argument taps the widespread commitment that a healthy civic life involves some accommodation of the sincerely held views of others. So it’s surprising that attempts to motivate compromise have turned to values not fully endogenous to a concept of democracy—fraternity, community, or the commitment to a union. I don’t think we need to introduce these values as complements to, or even rivals of, our working idea of democracy—unless we see it as a “crude hydraulic device.”5 The best rationale for treating compromise as a non-instrumental value relies upon a conception of democracy as a complex array of relationships.

If lawmakers aren’t our moral middlemen, then, it’s tempting to demand that they refuse to go along with any compromise proposal. We might even insist that they opt out entirely—either by engaging in pure bargaining in the process, or by refusing to accept concession in the product. Yet this posture can be unsustainable when adopted by elected representatives, who participate in a complex agency relationship with ordinary citizens. To demand that they act as purists can throw our political system into a perennial state of obstruction. That’s the first hazard. But suppose we reject purism, and ask them to serve as simple bargainers. They are to make deals that advance our first-order principles of justice, with no concessions that aren’t strictly needed to achieve the compromise. Here the hazard is subtler. We’ve authorized a series of agency relationships that put legislators—and, by extension, ordinary citizens—into relationships that may not be compatible with our ideal of democracy.

We can steer clear of these two ways of thinking about compromise. A lawmaker who places genuine weight on the accommodation of disagreeing parties need not betray our principles. There’s a real sense that compromise can, given certain background conditions, make a piece of legislation more democratic. My argument turns on the view that lawmakers generally have a weightier moral reason to countenance compromise than ordinary citizens. Assigning differential weight can seem puzzling. How can the refusal to participate in compromise be permissible—even laudatory—for you and me, while the same posture can seem morally vain when insisted upon by our elected official? Turning to a simple role-theoretic explanation to deliver a special responsibility looks suspiciously ad hoc. What features of the legislator’s role are capable of explaining—let alone generating—a stronger moral reason to compromise than that of citizens? If the lawmaker stands in a rudimentary agency relationship, it is hard to argue that the lawmaker’s moral situation is any different from that of her constituents. The agent’s powers derive from their relationship to the principal. It’s natural to think that the weight of moral reasons holds steady when one agent authorizes another to act. So where does this asymmetrical moral reason come from? Or is it wishful alchemy?

I work out an answer in four parts. Section one sketches the package of constitutive rules that make possible the joint activity of legislative compromise. I challenge proponents of deliberative negotiation for relying upon a picture of compromise that can make sincere participants prey to unscrupulous negotiators. Faced with individuals who are attempting to exploit the practice, we can be permitted to act in ways that are presumptively wrong. Section two begins by casting two characters, the purist and the strategist. Neither is capable of fully participating in compromise. I then introduce a composite figure, the practitioner, who is committed to principled compromise. Section three offers a rationale for the practitioner’s willingness to play in this crucial legislative game, offering non-strategic concessions. The value of co-ownership describes a way of relating to each other as co-citizens who share equal authority over lawmaking. If this democratic ideal has force, we can defend the practice of legislative compromise. But there’s a remaining worry that any defense of compromise will invite. Section four clarifies how the compromise enabler that I’ve defended can be defeated under a range of unjust and undemocratic conditions.

I. Legislative Compromise as a Practice

The furniture of legislative compromise is too familiar. It’s easy to miss the details of this designed environment. There’s a large table for extended face-to-face exchange, scheduled breaks for parties to huddle, and the contrapuntal procession of offer and counter-offer. This stage setting reminds us of two features of this practice that are not obviously compatible. First, negotiation on the way to compromise isn’t a fully cooperative activity. It’s a competitive exchange of speech acts, some aimed at persuading, others at urging. The “smoke-filled room” has become a metaphor for the crafted ambiguity of the speech acts exchanged in this setting. Parties are careful not to reveal too much of their hand, and they face powerful incentives to misrepresent their positions. Legislative compromise is a partially suspended context, where certain kinds of speech acts needn’t be treated as sincere or true within this practice. Here communication is, in Thomas Schelling’s words, “neither entirely impossible nor entirely reliable.”6

At the same time, compromise is joint activity. Within it, rival lawmakers act together against the backdrop of rules.7 These rules are constitutive of, and logically prior to, actions within the practice. So, as long as my fellow players and I share a commitment to honor the rules of the game, we can be said to be playing baseball together even while competing against each other. Within this practice our actions—even the objects of our environment—take on a different meaning. Canvas bags on the ground become bases. There are a series of actions that I can now perform that were unavailable outside the practice. It is not possible for me to balk on an attempted pitch if I am not a participant.8 The literature on shared agency has focused on the activities downstream from a joint intention, whether together painting a house or entering the battlefield. It describes the conditions for sharing an intention and then considers what this means for agents who co-participate in an activity. Here we are giving equal attention to those actions upstream of joint agency—the delicate process by which they are fastened together.

We can sketch the constitutive rules that mark out legislative compromise. Start with the characteristic aim of parties to compromise:

Co-Deliberation with Disagreement: Participants seek a resolution to a collective decision that they can accept, given background moral disagreement.

We still haven’t figured out how to live together. Our disagreements at the legislative level implicate unavoidably moral principles. But legislators aren’t your ordinary participants to a moral disagreement. So we need a way to capture their authorized position:

Agency Relationship: Participants are elected legislators who stand in a principal-agent relationship to their constituency.

This leaves open the demands of this paired agency relationship. We are supposing that the principal is a constituency and the agent is their legislator, but we don’t yet need to spell out how the agent needs to answer to the principal. Legislative compromise is a joint activity with a characteristic agreement. So we need to register the transactional character of this activity:

Shared Commitment: Participants share a commitment to place weight on accommodating the other participant’s position in the service of agreement.

Accommodation is the policy of assigning some weight to a consideration, rather than any given accommodation that one makes.9 Participants can share this commitment to place weight on a consideration without that consideration winning out as the all-things-considered thing to do. On my account, this commitment to accommodation is what Michael Bratman calls a “shared policy.” To see how this policy of “weighting” works, consider an admissions committee that agrees to a policy that places some weight on legacy candidates.10 If, after a day of deliberating about files, they end up admitting no legacy candidates, it would be too quick to conclude that they haven’t in fact shared this commitment in their decision-making. A candidate’s file can be below the bar even after applying this shared policy of giving the extra weight. Thus, parties can participate in this practice without, in the end, offering any accommodations, if they are assigning the appropriate weight to this consideration.

By construing the activity of compromise as a shared commitment to weight accommodation, we are able to register the moral significance of parties who “come to the table” and invest in the relationships that make legislative compromise possible. Contrast this with approaches that describe a set of necessary and sufficient conditions. Without a deal, they are unable to notice that the activity of compromise has taken place. But even if the deal isn’t required, seeking it is a characteristic feature of this practice:

Co-Acceptance: Barring defeaters, participants offer non-strategic concessions that make the package acceptable to the other party.

Non-strategic concessions, I will argue, are the watermark of negotiation in democratic settings. All compromise—whether haggling with the street vendor or pleading for a higher grade—is shot through with instrumental concessions. But lawmakers aren’t haggling over prices; they are engaging in a process that ends in authoritative demands backed by armed men and women. In the morally momentous setting of enacting coercive law, we place independent value on broad agreement as to the content of the law. To preview my position, lawmakers have a defeasible reason to make concessions that honor the procedural value of deciding together. The possibility of co-acceptance depends on a “stickiness” built in to this process. Part of agreeing to a concession is the joint intention to honor this settlement. The time frame will depend on the mutual expectations of the parties, and may well be built into the agreement with a sunsetting provision that will induce future legislatures to revisit the compromise package. So this final rule introduces the iterative character of t...