On the competence principle

In 1994 Stephen Young was convicted of a double murder. When it emerged that some jurors had used a Ouija board to inform their verdict, however, a retrial was ordered.

The philosophical (though not legal) justification for doing so has been described by Jason Brennan in his new book, When All Else Fails. He calls it the competence principle:

People have a right that certain types of high-stakes decisions be made by competent people, who make their decisions competently and in good faith. It is unjust, and violates a person’s rights, to forcibly deprive a citizen of life, liberty or property, or significantly harm her life prospects, as a result of decisions made by an incompetent decision-making body (p85).

Obviously, using a Ouija board to decide a man’s guilt is incompetent and thus unjust by this principle.

But here’s the thing. Brennan thinks the principle should apply not just to juries but to major policies as well:

Political decisions are presumed legitimate and authoritative only [my emphasis - CD] when produced by competent political bodies in a competent way and good faith.

If this is correct the Brexit referendum was illegitimate not (just) because it excluded big stakeholders, or was founded upon lies, or was bought with Russian money, but because the vote was taken by an incompetent electorate – one that was ill-informed, swayed by cognitive biases, or motivated by racism.

You might object that this is true only of some voters. Irrelevant. Only a minority of jurors in the Young case used the Ouija board.

Or you might think this is the sour grapes of a Remainer. Again, irrelevant. Young was convicted again at his retrial. The Ouija board jury got the decision right. But it’s not good enough to get it right. The competence principle says the decision must be taken in the right way.

Instead, the question is: is Brennan right? Does the competence principle actually hold?

Maybe not. In other cases of alleged incompetence by juries, law lords have refused appeals on the grounds that the need to preserve the secrecy of the jury room outweighs the competence principle. Likewise, maybe the principle is trumped in politics by another one – people’s right to participate. Claiming this, of course, requires reasons and not just assertions. Why should an idiot's right to a say trump other people's rights to liberty, prosperity or good government? It's not obvious to me, or to Brennan.

Even if you accept the competence principle however it does not follow at all that we should have a second referendum. There’s no reason to suppose this will be more honest or rational than the first.

Instead, the only chance of reconciling the competence principle with the right of participation (assuming one to exist, which Brennan denies) would be through some form of deliberative (pdf) democracy. This requires, among other things, tight rules on what evidence is admissible as well as safeguards against cognitive biases and inadmissible preferences.

It’s possible that such a device would deliver Brexit: as Matthew Goodwin says, people care about “identity, community. Belonging and tradition” as well as GDP. Or if you believe in a form of proceduralism then you’ll believe that the outcome of a truly good deliberative process will itself be legitimate.

It is of course obvious that our actually-existing media-political institutions are a trillion miles away from any ideal of deliberative democracy. This being so, the claims of both Leavers (“respect the will of the people”) and Remainers (“let’s have a second vote”) are both dubious. They beg the questions: why is the competence principle wrong? Why should we abide by decisions taken incompetently? The answer is by no means as obvious as small-minded partisans think it is.

Comments

[Jonathan da Silva]

Having voted Remain I still don't think anyone really told the truth.

To stay in the EU is presented as a single position but does it mean our relationship is frozen? For instance no one can argue there is a mood for further integration or that a referendum would have delivered Maastricht or Lisbon. Indeed many wanted the Euro which would have been a disaster. i.e. a vote for EEC in 73 has been used to add lots of stuff no one then voted for. No referendum can answer some genuine nuanced questions in the same way Leave meant different things to different people.

To just vote Remain means what? We smile and head back to that anti democratic body tail between our legs and never complain again?

I don't think referendums should be used for much as they are an abdication of responsibility but am peeing in the wind with will of the people and people's vote fans. Had Scotland voted 51-49 do they go through with independence?

Is there any competence anywhere in this?

[Matthew Moore]

The jury was only thrown out because the Ouija board was used in their hotel room. If it had happened in the jury room, the judge couldn't have ordered a retrial

[Dennis Smith]

@ Jonathan da Silva - the point is not just that "No referendum can answer some genuine nuanced questions". Some questions are not just nuanced but intrinsically open-ended. In a Brexit-type referendum some outcomes depend on negotiations with others who can't participate in the referendum (in the case, the EU). And some outcomes depend on the choices of future elections within the polity itself: no democratic government can control the choices of a later equally democratic government. So voting in a referendum may commit you to accepting outcomes that are currently unforeseeable

This is one reason why identity issues are not an add-on in these debates but are absolutely central. The reason why the losers in a democratic vote (usually) feel obliged to accept the result is that they recognise the legitimacy of the demos which made that choice. Being a member of that demos is a constitutive part of their identity. Confusion about the relevant democratic identities is one reason why the Brexit issue is so bitter and intractable.

[staberinde]

For me, the issue is one of radicalism and reversibility.

When we vote in general elections, we understand that we won't have to wait longer than 5 years before we can change our minds. And there's a limit to how much damage any government, no matter how large its majority, can achieve in that time.

To my mind, referendums are flawed if they operate on the principle of a simple majority. If the issue is so significant that Parliament cannot resolve it, how can a majority of a single vote be considered a resolution of the matter? Particularly when that matter might have a timeframe of a generation or even be permanent in nature?

I think if we are to hold referendums, the threshold for changing the status quo needs to be overwhelming - 2/3rds majority.

The whole point of democracy is to avoid conflict by allowing large groups of people with different views to compromise and therefore live together peacefully. That's what fair elections achieve - and why there is a debate about how fair our voting system is if it under-represents significant minority political views. But if referendums allow for radical and potentially permanent changes to the status quo following slim majorities, that's a recipe for creating division and conflict instead.

[Jim]

Its odd that all these arguments about how the uneducated masses aren't up to all the decision making that the high-falutin' middle classes are capable of were never were brought up when the Left were getting the votes of the uneducated masses................I mean I bet the vast majority of the people who voted Labour in 1945 weren't that educated or sophisticated, should their votes for Socialism have been discounted as people who had been influenced by Russia?

[Aslangeo]

Democracy and universal suffrage, means that all people can vote. The author appears to imply by the "competence principle" that only an elite should have the vote. Only elite people with "correct" "informed" opinions should have a say. Anybody who has different views, whatever their basis should be denied a right to have. The great uneducated and unwashed should be put back in their box. Does the author propose an education threshold for the franchise, let s say a BSC degree? I guess that the elite have views and plebs have prejudices.
No voter has perfect information, politicians put across their views and voters choose. All politicians lie and exaggerate, it s up to voters to choose who to believe and the can and do get it wrong.
Democracy does mean that the electorate can make mistakes ( hell Ted Heath got elected). This is usually put right when we turf the bums out at the next election

[georgesdelatour]

@staberinde

“I think if we are to hold referendums, the threshold for changing the status quo needs to be overwhelming - 2/3rds majority.”

Our membership of the EEC -> EU has never had anything “status quo” about it. It’s not a steady state but a process, intended to homogenise governance and bring about the progressive political amalgamation of its members. The intended end point is something like a second USA on the right side of the Atlantic.

Maybe every incremental homogenisation in that process should require a 67% majority in every member state. Maybe the EU should formally enumerate which attributes of a sovereign state it promises never to seek to acquire (e.g. an EU currency, an EU-wide tax system, an EU army). That would freeze it into a status quo which would need a 67% vote to overturn. That’s precisely why the EU would never agree to it.

[Phil]

When you think about it for more than a couple of seconds, the idea of deriving the solution to a problem from a referendum is downright odd. Snap answers to complex questions with a lot of variables and uncertainties are basically worthless, even if you multiply them by 34 million.

A structured and rule-based system of deliberative democracy might have a chance of surfacing answers which are both valid and representative, but sadly we haven't got one of those - apart from the political parties* and trade unions, but who listens to those?

*NB this set doesn't include the Conservative Party, which doesn't exist

[georgesdelatour]

Political decisions are very different from judicial decisions.

A jury has to decide whether Colonel Mustard murdered Professor Plum in the library with a candlestick (or at least decide if the prosecution has shown he did). Ultimately, either he did or he didn’t. It’s a brute fact. A pacifist juror who wants to convict the colonel because she believes that public reverence for the military is leading us into disasters like the Iraq War may have a good point, but it’s not an acceptable reason to find him guilty. Just the facts, ma’am.

A parliament has to decide whether to repeal the Corn Laws. This is completely different. It’s about conflicting class interests. The urban population has an interest in cheap grain, and the rural in expensive grain. There are secondary facts that can help parliament reach its decision, but the issue cannot be boiled down to a binary true/false proven/unproven the way a jury decision can.

[Dave Timoney]

"Obviously, using a Ouija board to decide a man’s guilt is incompetent".

I'm not sure that is obvious. Competence simply means getting it right, and in this particular case it appears that the jury were right to convict.

In deferring to competence we are simply deferring to then-dominant expertise, but that isn't necessarily any better than random chance: consider the expertise of a Medieval physician or a modern fund manager.

[Stabs]

Doesn't the competency principle inevitably lead to technocracy. Which in turn leads to an alienation from the democratic process by people who don't trust and can't relate to technocrats and who could never be one.

[Aslangeo]

I agree with Stabs, technocrats by definition don’t really understand the concerns and feelings of ordinary people. These folks have contempt for the so called plebs which is reciprocated. Eventually this is how revolutions start. Not a good outcome for anyone

[[email protected]]

There’s a difference between holding a referendum in a system where referenda are anomalies, and holding one in a system where they’re a permanent, ongoing feature of governance - as they are in Switzerland.

The benefit of the Swiss system is, it stops the preferences of the political class diverging too far from those of the wider population.

[georgesdelatour]

@stabs

The point is, the competent have different class interests from the non-competent; just as a senior Harvard professor has different class interests from the un-credentialled janitors who clean his office.

The 2007 banking crisis happened partly because the US government did what the bankers who knew the most about banking asked it to do. In other words, they adopted policies which were good for bankers, but bad for the rest of us.

[Dennis Smith]

I'm not sure that the distinction between technocrats and ordinary people is very helpful here. Most people are (more or less) competent at some things but not at others. The problem is that some types of competence attract far more power and prestige than others. What we need is institutional structures that distribute power and prestige more evenly across society – not to mention wealth. Our present political structures reward full-time political careerists. How many successful entrepreneurs are there in the current House of Commons? And how many working-class people without a university degree?

[Jim]

" Our present political structures reward full-time political careerists. "

Which is why I have long proposed that no-one under the age of 50 be allowed to stand for Parliament. The conveyor belt of Oxford PPE/think tank/Spad/prospective candidate/MP needs to be stopped, and politics become something you do after a career doing something else, which will have given you some better perspective on life. It might also weed out some of the psychopaths and narcissists who infest politics as well.

[Dipper]

Most "competent" people have an agency that means they are not impartial.

Can one of those Remainers who complain about old Leave voters please explain why voters start competent and apparently get less competent with age?

[Anomalous Cowshed]

Is it competence that you are after, or is it replicability?

Will the Ouija board process produce the same result, given the same inputs? Or is it important that those particular jurors, at that particular time, used it?

And, whilst I'm at it;

"This requires, among other things, tight rules on what evidence is admissible as well as safeguards against cognitive biases and inadmissible preferences"

Would you like to compare this against the process leading to 1973, then 1975, 2016 and now? Then tell me who gets to set those "tight" rules?

[Christopher Herbert]

My view is that there are very well developed academic concepts that judge the EU arrangement to be an abject failure. There can be no 'federalist' organization where the common currency is, in fact, a foreign currency for most of the members. Is the single market concept worthless if the euro is tossed out and all EU members restore their domestic currencies? I believe it would be strengthened. After all in today's forex markets currency values can easily be adjusted by currency markets thus making it possible to adjust values within the nation state as between nation states. Right now, internal valuation changes are excruciatingly painful because they are tied to a foreign currency.