On the Logical Priority of Justice over Legitimacy: The Case of Political Equality
In this paper I argue against a recent proceduralist approach to political theory which urges us to focus on questions of legitimacy—the moral rightness of political procedures—while bracketing questions of justice—the moral rightness of political outcomes. The major motivation behind this approach is to contain our reasonable disagreement on substantive issues of justice by focusing instead on legitimate ways of deciding between them (Valentini 2013, 2013; Waldron 1999, Rawls 1993). Yet my aim is to show that this approach is misguided, as it falsely assumes that we can specify requirements of legitimacy independently of requirements of justice. Specifically, I show that this assumption is mistaken because some aspects of political equality, a necessary condition of the legitimacy of political deliberation and decision-making procedures, cannot be specified without reliance on a particular theory of distributive justice. First, I distinguish between the formal and the substantive aspects of political equality. Second, for illustrative purposes, I briefly elaborate on a roughly Dworkinian account of political equality to show that the content of the substantive aspect of political equality depends on the content of the theory of distributive justice you endorse. Third, I provide a formal argument concluding that requirements of legitimacy are logically dependent on requirements of justice. Finally, I address and rebut an objection from legitimacy minimalism or political libertarianism: namely, that we should decide what substantive political equality requires in majoritarian ways, and consider only formal political equality as a necessary condition of legitimacy. I conclude that when we are looking for the right political procedures, we cannot bracket questions of substantive justice and our disagreements concerning what justice requires. My argument shows that disagreement over the right principles and requirements of justice escalates into a disagreement over what political equality, and a fortiori, over what legitimacy requires.