This article was downloaded by: [University of Tennessee, Knoxville]On: 22 December 2014, At: 02:09Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number:1072954 Registered office: Mortimer House, 37-41 Mortimer Street,London W1T 3JH, UK

Critical Review ofInternational Social andPolitical PhilosophyPublication details, including instructions forauthors and subscription information:http://www.tandfonline.com/loi/fcri20

The voice of the people inthe legal reasoning of CassSunsteinDavid van Mill aa Assistant Professor in Political Science ,University of Chicago ,Published online: 25 Sep 2007.

To cite this article: David van Mill (1998) The voice of the people in the legalreasoning of Cass Sunstein, Critical Review of International Social and PoliticalPhilosophy, 1:4, 152-156, DOI: 10.1080/13698239808403262

To link to this article: http://dx.doi.org/10.1080/13698239808403262

PLEASE SCROLL DOWN FOR ARTICLE

Taylor & Francis makes every effort to ensure the accuracy of allthe information (the “Content”) contained in the publications on ourplatform. However, Taylor & Francis, our agents, and our licensorsmake no representations or warranties whatsoever as to the accuracy,completeness, or suitability for any purpose of the Content. Anyopinions and views expressed in this publication are the opinions andviews of the authors, and are not the views of or endorsed by Taylor& Francis. The accuracy of the Content should not be relied upon andshould be independently verified with primary sources of information.Taylor and Francis shall not be liable for any losses, actions, claims,

proceedings, demands, costs, expenses, damages, and other liabilitieswhatsoever or howsoever caused arising directly or indirectly inconnection with, in relation to or arising out of the use of the Content.

This article may be used for research, teaching, and private studypurposes. Any substantial or systematic reproduction, redistribution,reselling, loan, sub-licensing, systematic supply, or distribution in anyform to anyone is expressly forbidden. Terms & Conditions of accessand use can be found at http://www.tandfonline.com/page/terms-and-conditions

Dow

nloa

ded

by [

Uni

vers

ity o

f T

enne

ssee

, Kno

xvill

e] a

t 02:

09 2

2 D

ecem

ber

2014

The Voice of the People in the LegalReasoning of Cass Sunstein

DAVID VAN MILL

Cass Sunstein, Free Markets and Social Justice. New York, OxfordUniversity Press, 1996.

Cass Sunstein, Legal Reasoning and Political Conflict. New York,Oxford University Press, 1997.

Both of these books present Sunstein's views on a variety of topicsunder the broad rubrics of politics, the market, and the law. Whatlinks them together is a particular theory of rationality, a strongpreference for deliberative democracy, and an Aristotelian concept ofpractical reasoning. Together, the two books provide a fairly coherentargument for a mildly paternalistic liberal democracy in which thevoice of the people as a whole is given priority over those of political,legal, and technical elites.

In Free Markets and Social Justice, Sunstein argues against theeconomic model of rationality that suggests a rational agent is onewho attempts to maximize immediate self-interest. This, according toSunstein, is a faulty view from both the empirical and normativeperspectives. In terms of the former, Sunstein gives a number ofexamples that suggest individuals do not act in such a simplified,instrumental manner. Even the relatively simple act of buying a car,for example, may be based on a variety of variables, such as peerpressure or the patriotic desire to buy American. Choices are alsomade against the background concerns of justice, fairness, co-operation, class, and religion - all of which may prevent a personfrom acting in a maximizing way. Such features of choice mean thatour preferences are shaped by a host of social norms and situations.What may count as a good reason to perform an act at one time andin one circumstance could well be invalid under differentcircumstances at a different time. Hence 'preferences are not fixed,

CRISPP, Vol.1, No.4 (Winter 1998), pp.152-156PUBLISHED BY FRANK CASS, LONDON

Dow

nloa

ded

by [

Uni

vers

ity o

f T

enne

ssee

, Kno

xvill

e] a

t 02:

09 2

2 D

ecem

ber

2014

THE VOICE OF THE PEOPLE 153

global and stable [as rational-choice theory tells us], but are insteadadaptive to a wide range of factors' (p. 14). Given these backgroundconditions, action, and not simply choice, has to be judged rationalor otherwise in relation to the social, economic, and political rolesthat become attached to actors.

Simply stating that we reveal a preference when we make a choiceis not very helpful, according to Sunstein; the key problem is how tounderstand what causes the choice/preference in the first place, andthis means that we have to understand the background conditionsthat provide people with choices/preferences. Simply to takepreferences as given is to leave out the biggest piece of the puzzlebecause preferences come along with all the baggage that goes intoone's identity. Sunstein, therefore, criticizes the economic modelbecause it fails to take into account the complexity of human decisionmaking and because it does not get to the underlying conditions thatcreate choices.

Sunstein continues his critique by arguing that, even if theeconomic model was to satisfy the demand for and adequateexplanation of preference formation, it is still, nonetheless,undesirable. A society based on a market that allows largelyunfettered preference maximization is not necessarily a just society.Markets tend to be inefficient and many times they either preventjustice or perpetuate injustice. For example, Sunstein argues that itoften made good economic sense in America for businesses todiscriminate against women and minorities. This happenedsometimes because it was possible to pay such groups less for thesame work performed by white men and other times because theemployer did not wish to discriminate but may have had to do so inorder to stay in business (for example, the owner of a restaurant whowould lose customers if he or she served non-whites). The upshot isthat social norms can create injustice in the economic market andpreference maximization simply perpetuates the problem.

The final critique Sunstein offers against the economic model ofrationality is to suggest that maximizing individual preferences maybe a bad thing for the individual, depending on the preferenceinvolved. This boils down to the claim that ends, and not just themeans to ends, have to be judged in terms of rationality. Consuminglarge amounts of dangerous drugs can be very harmful and even self-

Dow

nloa

ded

by [

Uni

vers

ity o

f T

enne

ssee

, Kno

xvill

e] a

t 02:

09 2

2 D

ecem

ber

2014

154 CRISPP

destructive, and such behaviour cannot necessarily be classed asrational simply because it is instrumentally successful.

Given that markets are not always fair, that a market has to relyon legal enforcement of contracts, that preferences are the result of avariety of background conditions, and that preference maximizationmay be bad for the individual, Sunstein argues that there is a strongjustification for government intervention in both the formation andpursuit of preferences. Most will not be too troubled by the latterclaim because we prevent the pursuit of preferences that cause harmto others all the time, but the former will sound very suspicious toanyone who still accepts the claim that the liberal state should beneutral to competing conceptions of the good. Sunstein justifies hisbrand of paternalism, precisely because preferences are endogenous.If such preferences prevent human well-being, then there is a case tobe made for intervention, even at the stage of preference formation.Basically Sunstein is willing to allow paternalism if enacted in thename of autonomy: one can be and should be 'forced to be free' oncertain occasions by the liberal state. Sunstein's point is that a liberaldemocracy should not be involved with the souls of its citizens, butthat it should concern itself with some of their choices/preferencesand what shapes them. The extent of this paternalism is not clearlyspecified in either book; it does extend to an active role forgovernment in shaping collective conceptions of the good, but whatthis means is also unclear.

Some of the arguments in the books are not persuasive, inparticular, the claims for the collective superiority of the multitude.In both texts, Sunstein sides with the dominant theme ofcontemporary political theory which makes public reason thebenchmark of legitimacy. However, many of his points about theirrational choice mechanisms sometimes employed by individuals toarrive at decisions, and some of the evidence that points to thewarped views many people have of costs, benefits, and risks, tend tocount against letting deliberation rule the roost. While it is never fullyarticulated, Sunstein comes close to suggesting that many decisionsare the result of false consciousness. If this is the case then it could beanother reason for viewing the results of deliberation with somesuspicion.

It is difficult, however, to know exactly what Sunstein means by

Dow

nloa

ded

by [

Uni

vers

ity o

f T

enne

ssee

, Kno

xvill

e] a

t 02:

09 2

2 D

ecem

ber

2014

THE VOICE OF THE PEOPLE 155

deliberative democracy. He never really tells his readers what they aresupposed to understand by the term. Hence, it is hard to know if hissolutions to the many problems he addresses are valid. Given theephemeral nature of much of the literature on deliberation, Sunsteinis not alone in leaving the reader wishing for more detail about whatexactly counts as legitimate dialogue and what counts as a legitimateoutcome from real-life deliberation.

The theme of deliberation is common to both books. In LegalReasoning and Political Conflict, Sunstein also claims that the keyjudicial issues should be decided democratically. Courts shouldresolve conflicts in a plural society by avoiding abstract theorizingand instead focus upon the particulars of the issue at hand; in thismanner, we can come to 'incompletely theorized agreements onparticular outcomes' (p.viii). This, according to Sunstein, is the corefeature of legal reasoning. It is the method used by lawyers, who,focusing on specifics, use analogous reasoning to decide 'concretecontroversies involving particular people and particular facts' (p.vii).The task of lawyers and judges is not to engage in the hubristicactivity of philosophy, but to engage in an Aristotelian form ofpractical reasoning. It is our shared understandings, as expressedthrough deliberation, and not Dworkin's Hercules that will answerthe big legal questions. So, basically, Sunstein supports the followingthree approaches to legal reasoning: (1) incomplete theorizing; (2)case-by-case judgements; and (3) democratic deliberation for grandtheory. This goes against the common view that the court should actas the 'forum of principle' in which justice is rule bound. The actualreality behind this idea, Sunstein tells us, is that 'The real forum ofhigh principle is politics not the judiciary' (p.7). Hence, in bothbooks, philosophy is demoted and has to kneel at the alter ofdemocratic deliberation.

This, of course, is a very contentious argument. One can start offby asking if he is talking about legal reasoning at all and suggest thatwhat he is really proposing is a form of legal 'getting by' or legal'making do'. It could also be argued that rules allow us to act on aday-to-day and case-by-case basis without having to delve into highphilosophy and yet without also providing the amount of interpretivescope to judges that Sunstein's analogical reasoning seems topromote. It may also worry some that analogical arguments can lead

Dow

nloa

ded

by [

Uni

vers

ity o

f T

enne

ssee

, Kno

xvill

e] a

t 02:

09 2

2 D

ecem

ber

2014

156 CRISPP

us down a subjectivist path in law that removes formal checks ondecision making and that allows undue leeway for judges, who canuse sophisticated rhetoric to replace legal rules. Perhaps it is time to'bring philosophy back in' to questions of law and politics.

Sunstein writes so clearly and concisely that it is often easy tooverlook the sophisticated nature of his arguments. He draws onmany different literatures and deals with a variety of interestingtopics, applying political theory to concrete issues of majorimportance. His discussion of the limits of the economic rational-choice model is excellent and both texts recognize the need for asubstantive theory of the good upon which to hang the ideals offreedom, autonomy, and equality. The arguments are provocative,and interesting. Even when Sunstein does occasionally reinvent thewheel, he does so in a manner that makes it spin more smoothly.

Dow

nloa

ded

by [

Uni

vers

ity o

f T

enne

ssee

, Kno

xvill

e] a

t 02:

09 2

2 D

ecem

ber

2014