The Right of Rights by Jeremy Waldron

Participation: The Right of Rights
Author(s): Jeremy Waldron

Source: Proceedings of the Aristotelian Society, New Series, Vol. 98 (1998), pp. 307-337
Published by: Wiley on behalf of The Aristotelian Society
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XV*-PARTICIPATION:THE RIGHTOF
RIGHTS
by JeremyWaldron
ABSTRACT This paperexamines the role of political participationin a theory of
rights. If political participationis a right, how does it stand in relation to other
rightsaboutwhich the participantsmay be makingpolitical decisions? Suppose a
majority of citizens vote in favour of some limit on (say) the free exercise of
religion. If their decision is allowed to stand, does that mean that we are giving
more weight to the right to participatethan to the right to religious freedom?In
this paper, I argue that talk of conflict (and relative weightings) of rights is
inappropriatein a case like this. I arguethat the special role of participationin a
theory of rights is not a matterof its being given moralpriorityover otherrights.
Instead it's a matter of this being a right whose exercise seems peculiarly
appropriate,from a rights-basedpoint of view, in situations where reasonable
right-bearersdisagree aboutwhat (other)rightsthey have.
I
; T he greatrightof every man', said WilliamCobbett,'the
rightof rights,is the rightof havinga sharein the making
of the laws, to whichthe good of the wholemakesit his dutyto
submit.'1Whatsortof rightis this?How is it justified?Andhow
important is it in relationto otherrights?Cobbettcalledit 'theright
of rights',a phrasewhichwhenreadcarelesslymightsuggestthat
participation is moreimportant thantheotherrightswithwhichit
might conflict. For example:exercisingtheir right to political
participation, the membersof a majorityvote in favourof some
limit on (say) the free exerciseof religion;if participation is the
rightof rights,it looksas thoughtherightto religiousfreedomis
goingto haveto give way,in cases likethis,in orderto vindicate
therightof participation. In thispaper,however,I shallarguethat
talkof conflictof rightsis inappropriate in thissortof case.I shall
arguethatthe specialrole of participation in a theoryof rightsis
not a matterof its havingmoralpriorityoverotherrights.Instead
1. William Cobbett, from Advice to YoungMen and Women,Advice to a Citizen (1829),
quoted in LJ. MacFarlane,The Theoryand Practice of HumanRights (London:Maurice
Temple Smith, 1985), p. 142.
*Meeting of the Aristotelian Society, held in Senate House, University of London, on

Monday,22nd June, 1998 at 8.15 p.m.
308 JEREMYWALDRON
it's a matterof this being a right whose exercise seems peculiarly

appropriatein situationswhere reasonableright-bearersdisagree
about what rights they have.
II
To begin with, what sort of right is this 'rightof having a sharein
the making of the laws'? Karl Marx distinguished famously
between the rights of man and the rights of the citizen. The rights
of man-such as property, security and religious liberty-are
'nothingbut the rightsof... egoistic man,man separatedfrom other
men and the community'. But the rights of the citizen-voting,
eligibility for office, and the freedom to discuss and criticize the
conduct of public affairs-are quiteunlike the traditionalrightsof
man. The rights of the citizen, far from being atomistic, are
'political rights that are only exercised in community with other
men.'2
The point is undeniable:one cannot understandpolitical rights
in terms of the drawing of boundaries around autonomous
individuals;3they are to be understoodinstead as establishing a
basis on which large numbers of right-bearersact together to
control and govern their common affairs.Certainly,it would be a
mistake to regard political participationas a merely 'negative'
right,protectingpeople from interference.The distinctionbetween
positive and negativerights-that is, between a rightcorrelativeto
another's duty to actually do something for the right-bearer's
benefit and a right correlative to another'sduty to refrainfrom
doing somethingthat interfereswith the right-bearer'sfreedom-
is arguably unhelpful anyway. It has all the difficulties of the
philosophers'distinctionbetween acts and omissions. It faces the
additionaldifficulty that a given right is usually correlativenot to
single duties but to arrays of duties, some of them duties of
omission, othersduties of action.4And it is particularlyunhelpful
in the case of political rights.
2. Karl Marx, 'On the Jewish Question', in Jeremy Waldron(ed.) Nonsense Upon Stilts:
Bentham,Burkeand Marx on the Rightsof Man (London:Methuen, 1988), pp. 144-6.
3. Or 'hyper-planesin moral space', or whatever other nerdyjargon we use: Cf. Robert
Nozick, Anarchy,State and Utopia (Oxford:Basil Blackwell, 1974), p. 57.
4. See JeremyWaldron,'Rightsin Conflict' Ethics, 99(1989), 503-19, reprintedin Liberal
Rights: Collected Papers 1981-91 (Cambridge:CambridgeUniversity Press, 1993).
PARTICIPATION:
THERIGHTOFRIGHTS 309
We can see this if we consider MauriceCranston'suse of the

distinctionin his attackon the inclusion of 'economic and social'
principlesin the 1948 UniversalDeclarationof HumanRights:
Thetraditional 'politicalandcivilrights'can...be readilysecured
by legislation;andgenerallytheycanbe securedby fairlysimple
legislation.Sincethoserightsarefor the mostpartrightsagainst
government interference witha man'sactivities,a largepartof the
legislationneededhastodo nomorethanrestrain thegovernment's
ownexecutivearm.Thisis nolongerthecasewhenwe turnto 'the
rightto work','therightto socialsecurity',andso forth.5
Whatever the case with civil rights such as religious freedom,
political rightscertainlycannotbe securedby legislationthatdoes
'no more than restrain the government's own executive arm'. The
right to vote is not a matter of negative freedom to express a
preferencefor one's favouritepolitician, and it is not securedby
the individual'ssimply being left alone by the stateto do this when
he pleases. One has the rightto vote only if one's vote is counted
and given effect in a system of collective decision thatdetermines
policy, leadershipandauthority.To vote is to exercisea Hohfeldian
power6 (albeit a heavily conditional power): it is to performan
action which (if enough others also perform it) alters the
assignmentof rightsand duties in the community.(It is more like
executing a power of attorneythanlike makinga speech.) Respect
for such a rightis costly, in at least two ways. First,to institutean
effective system of voting requires manpower and resources.
Secondly, the right to vote is costly to officials inasmuch as it
makes their tenurein office vulnerableto decision-makingby the
voters and requiresthem to abandonoffice whenever the voters
renderan adverseverdict.
It is wrong thereforeto contrastthe kinds of demandsmade in
the name of political rightsand the kinds of demandsmade in the
name of economic and social rights. Though the latter are not
Hohfeldianpowers, still rightsof both sorts requirethe institution
and operationof administrativesystems; both involve manpower
and resources; both presuppose a relatively stable and well-
5. MauriceCranston,'HumanRights, Real and Supposed,'in D.D. Raphael(ed.) Political
Theoryand the Rightsof Man (London:Macmillan,1967).
6. For 'power', see Wesley Necomb Hohfeld,FundamentalLegal Conceptions,asApplied
in Judicial Reasoning (New Haven:Yale UniversityPress, 1919), pp. 50 ff.
310 JEREMYWALDRON
organizedsociety;andbothrequiregovernments andgovernment
officialsto do certainthingsundercertainconditions,not merely
refrainfromdoingcertainthings.
Butperhapsthisis to taketoo superficiala view.Someonewho
wantedto insistthattherightto voteis a negativerightmightargue
as follows.Therightto voteis important onlybecausetheexercise
of politicalpoweris a matterof moralconcern.Andthe exercise
of politicalpoweris a matterof moralconcernbecauseit restricts
the(negative)libertyof individuals.Wearguefortherightto vote,
therefore,by saying (1) that individualshave a fundamental
negativerightagainstthecoercionthatexercisesof politicalpower
involve, (2) that this fundamentalright is respectedeither by
limitingtheexerciseof politicalpoweror by securingtheconsent
of those who are subjectto it, and (3) thatvotingis a way of
securingsomethinglikeconsent.7Althoughsecuringconsentmay
be a costlyandtime-consuming activity(asit is alsoin otherareas
of negativeright),thatfactalonedoesnotmaketherightwhichthe
consentprotectsanyless a negativeright.
This accountis ingenious;it containsa substantialelementof
truth;andit wouldbe almostcompletelypersuasivewereit notfor
the fact thatwe can also offeran alternative accountof whatlies
beneaththerightto vote-an accountwhichrepresents thedeeper
consideration as a positiveratherthana negativeright.Peopleowe
each othercertainfundamental dutiesof respectandmutualaid
which are betterfulfilled when orchestratedby some central
agency like the state than when they are left to the whims of
individuals.8But since it is my duties (amongothers')whose
performance thestateis orchestrating,I havea rightto a sayin the
decision-mechanisms whichcontroltheirorchestration.
I amnot sayingthatthe accountI havejust givenis superiorto
the accountgiven in the paragraph before.It is a competitor;or
7. This account is broadly Lockean in character,and one would want to invoke the
complexities of a theorylike Locke's to justify the claim thatvoting in a majoritariansystem
counted as individual consent. Briefly, one would have to show that the system of
majoritarianvoting-or the constitutionalbasis on which it was set up-commanded the
unanimousconsent of those legitimatelysubjectto the political power in question.See John
Locke, Two Treatisesof Government,ed. PeterLaslett (Cambridge:CambridgeUniversity
Press, 1988), II, paras.95-99 and 132 (pp. 330-3 and 354-5).
8. For differentversions of this account,see RobertE. Goodin, 'The Stateas MoralAgent',
in Alan Hamlin and Philip Pettit (eds.) The Good Polity: NormativeAnalysis of the State
(Oxford: Basil Blackwell, 1989) and R. Dworkin, Law's Empire (Cambridge:Harvard
UniversityPress, 1986), pp. 195-216.
THE RIGHTOF RIGHTS
PARTICIPATION: 311
maybe the two are complementary.But surely we do not have to

choose between them in orderto work out-formally-what sort
of right the right to vote is. It seems betterto give an account of
whatit involves,whatsortof dutiesit imposes,whetherit is a power
or a claim-right,etc., and leave it as a separatethoughcertainlyan
importantquestion in political philosophy what opportunitiesor
difficulties, associated with political power and political organ-
ization, the right to vote is responsive to so far as its ultimate
justificationis concerned.
III
Marxbelieved thatpolitical rightsinvolved collective activity not
only in the way in which they were establishedand secured but
also in the way in which they were understoodandexercised.9He
was right about this too. That there is a collective element in the
way in which the rights of the citizen are understoodis evident
from the term commonly used to describe them: the right to
participate. To participate is 'to take a part or share in an
action...',1?somethingwhich necessarilysupposesthat one is not
the only person with a partor sharein the activityin question.
There is an ambiguityhere. Sometimeswhen we talk aboutthe
people participatingin government,we mean thatthereis a place
for involvement by ordinary people or their representatives
alongside whateverother groups, classes or individualsexercise
power and authority in the state. Thus the Roman people
participatedin the governanceof the republicthroughthe Comitia
and throughthe intercessionof the tribunesof the plebs; but the
sharing which 'participation'connotes is sharingwith othernon-
popularelements in the republicsuch as the (aristocratic)Senate.
Participationhere means the co-existence of different modes of
governmentin a mixed regime. But when participationin politics
is demandedas a humanright, it usually means much more than
9. 1 will not discuss Marx's critiqueof political rights in a bourgeoissociety. Briefly, his
position was thatthe collective characterof such rightsis distortedby the politicalsystem's
being regardedas a meansto economicallyindividualisticends. (Marx,op. cit., p. 147.) See
also KarlMarx, 'CriticalRemarkson the Article"TheKing of PrussiaandSocial Reform"'
in Karl Marx: Selected Writings(ed.) David McLellan(Oxford:Oxford UniversityPress,
1977), p. 126.
10. TheNew ShorterOxfordEnglish Dictionary(Oxford:ClarendonPress, 1993), Vol. II,
p. 2109.
312 JEREMYWALDRON
this. The demandis not merelythat thereshouldbe a popular

elementin government,but thatthe popularelementshouldbe
decisive.Thedemandis for democracy, notjusttheinclusionof a
democraticelementin a mixedregime.
Whatbecomesof thesharingconnotedby 'participation' in this
secondmoreradicaldemand?'Sharing'refersnowto thefactthat
each individualclaimsthe rightto play his part,along with the
equalpartplayed by all other individuals,in the governmentof the
he demandsthathis voice be heardand
society.As a right-bearer
Buttheformin whichhis
thatit countin publicdecision-making.
demand is made-a right to participation-acknowledges on its
facethathis is not theonly voice in the societyandthathis voice
shouldcountforno morein thepoliticalprocessthanthe voice of
any other right-bearer. His contributionaspires,of course, to
decisiveness,butthe aspirationis temperedby principlesof fair-
ness andequalityimpliedin theuniversalization of his claim.1I
In this regard,the rightto participatedisplaysup front-in its
slogan-somethingthatmostof us thinkaboutrightsof all sorts
butusuallymakeevidentonlyat thelevelof theory.Whenwe talk
abouta rightto liberty,forexample,orevenrightsto certainbasic
liberties,we think that the extent of the right in questionis
determinedby somethinglike a principleof equality.Thus,John
Rawls'sprincipleof libertyembodiesa commitmentto equality:
'Eachpersonis to havean equalrightto themostextensivebasic
libertycompatiblewitha similarlibertyforothers.'12 Becausethe
exerciseof one person'slibertymayconflictwith andthuslimit
the libertyof another,theproperextentof therightis determined
by makingadjustments in whatis allowedto eachso thatthefinal
schemeis securedforeachatthehighestlevelof libertyconsistent
withequality.
Actually,thereis alsoanotherconstraint intheRawlsianformula.
Itis important notonlythatlibertybe equalforall,butalsothatthe
scheme of basic libertiessecuredfor each be 'adequate'at an
11. To put it anotherway: he demandsno morethanan equal share,but the logic of equality
in this as in other contexts requires that it be equality at the highest level of individual
effectiveness consistentwith a like effectiveness for all. (See GregoryVlastos, 'Justiceand
Equality', in Jeremy Waldron(ed.) Theories of Rights (Oxford:Oxford University Press,
1984),pp.62-8.)
12. John Rawls, A Theoryof Justice (Cambridge,Mass.: HarvardUniversity Press, 1971),
p.60.
PARTICIPATION:
THE RIGHTOF RIGHTS 313
individuallevel.13It mustbe adequate,thatis, for the purposesfor

which each individualwants and requiresliberty-namely, self-
developmentand the living of a life in accordancewith his own
conception of the good.14A concernfor adequacytakes seriously
the possibility that,in a crowdedsociety, the equalityrequirement
may squeeze the liberty of each persondown to such a modicum
that, at the individuallevel, it is scarcely worthhaving or fighting
for.The algebraof modernliberalismrestson the hope thatthis will
turnout not to be the case, and thatthe two constraintsof equality
and adequacycan be satisfiedtogether.15
A similar issue is sometimes posed for political participation.
The modern voter is sometimes afflicted by an anxiety that his
individualvoice and vote will be lost amongthe millions of others
who participatewith him in elections and referendums.If each
person'svoice is so insignificant,it may be questionedwhetherthe
rightof participationis actuallya rightworthhaving.This concern
loomed largein BenjaminConstant'sargumentfor preferringwhat
he called the liberty of the modernsto the libertyof the ancients.
In ancientrepublics,'[t]he sharewhich...everyoneheld in national
sovereigntywas by no meansan abstractpresumptionas it is in our
own day. The will of each individual had real influence: the
exercise of his will was a vivid andrepeatedpleasure.'16The same
is not true,Constantsaid, of the individualin the modernpolitical
community.Even in 1819 the size of the communitydwarfedthe
participatorycontributionof each citizen:
His personalinfluenceis an imperceptible partof the socialwill
whichimpresseson the governmentits direction....Lost in the
13. Thus in a more recent formulation,Rawls talks of 'a filly adequate scheme of equal
basic libertieswhich is compatiblewith a similarscheme of libertiesfor all' (my emphasis).
See John Rawls, 'The Basic Libertiesand their Priority'(1981), reprintedin S. McMurrin
(ed.) Liberty,Equalityand Law:Selected TannerLectureson Moral Philosophy(Salt Lake
City: Universityof Utah Press, 1987), p. 5.
14. Isaiah Berlin, in Four Essays on Liberty(Oxford:Oxford UniversityPress, 1969), p.
124, states the adequacycondition in this way: '[T]hereought to exist a certainminimum
areaof personalfreedomwhich muston no accountbe violated;for if it is overstepped,the
individualwill find himself in an areatoo narrowfor even that minimumdevelopmentof
his naturalfaculties which alone makes it possible to pursue, and even to conceive, the
variousends which men hold good or rightor sacred'.
15. Or, to put it in more distinctively Rawlsianlanguage,the hope is that the rationalcan
be reconciled with the reasonable: see John Rawls, Political Liberalism (New York:
ColumbiaUniversityPress, 1993), pp. 48 ff.
16. BenjaminConstant,'The Libertyof the AncientsComparedwith thatof the Moderns',
in Benjamin Constant: Political Writings, ed. B. Fontana (Cambridge: Cambridge
UniversityPress, 1988), pp. 314, 316.
314 JEREMYWALDRON
multitude,the individualcan almostneverperceivethe influencehe

exercises.Neverdoes his will impressitself uponthe whole;nothing
confirmsin his eyes his own cooperation.17
So long as each person'sshareof political authorityis this small, it
seems difficult to make a case for its adequacy.Accordingly it is
hardto arguefor it as a matterof right-hard, that is, to show the
importanceof its notbeing qualified,complementedorundermined
by other non-democratic mechanisms of political decision-
making.18
Some say the diminutionof each vote is more thanmade up for
by the correspondingscale of the issues it addresses.I am only one
voice amongmillions, butthe social decision in which I participate
is a decision affectingmillions. The voter'schoice thereforeis still
something that should be taken seriously when such momentous
outcomesarein question.19It may be wrong,however,to thinkthat
adequacyis best understoodas a functionof power-that is, power
in the crude sense of scale of consequences diminished by
improbabilityof decisiveness. Perhapsthe adequacycondition for
the right to participatehas less to do with a certain minimum
prospectof decisive impactandmoreto do with avoidingthe insult,
dishonour,20or denigration that is involved when one person's
views are treatedas of less account than the views of others on a
matterthat affects him as well as the others.
Some rightsinvolve whatJoel Feinberghas called 'comparative
justice', meaning that what justice requiresin the distributionof
17. Ibid., p. 316.
18. See RonaldDworkin,Freedom'sLaw: TheMoralReadingoftheAmerican Constitution
(Cambridge:HarvardUniversityPress, 1996), p. 21.
19. See DerekParfit,ReasonsandPersons(Oxford:ClarendonPress, 1984), pp.73-5. Parfit
arguesthatfamiliarpuzzles aboutwhy people vote when theirvote has such a small chance
of determiningthe result rest on the assumptionthat people only vote for the sake of the
difference outcomes may make to their personal well-being. If we suppose, however, that
each personis concemed by the differenceoutcomes may maketo the generalwelfare, then
the decision to vote may look more rational.If (say) the cost to me of voting is $10 but the
differencebetween the outcome I favourand the outcome I oppose is worth(I think)$2,000
to each American,then as an altruistI will certainlyvote wheneverI thinkthe chance of my
vote being decisive is greaterthan 1 in 52 billion. As Parfitnotes, political scientists who
botherwith these calculationsbelieve thatthe chanceis in fact an orderof magnitudegreater
thanthis (i.e. more like one in several hundredmillion).
20. Cf. Aristotle,ThePolitics, Bk. III,Ch. 10, 1281a29-32, translatedby BenjaminJowett,
in the new Stephen Everson edition (Cambridge:CambridgeUniversity Press, 1988), pp.
65-6: 'Then ought the good to rule and have supremepower? But in that case everybody
else, being excluded frompower, will be dishonoured.For the offices of a state are posts of
honour;and if one set of men always hold them, the rest must be deprived.'
PARTICIPATION:
certaingoods is not anyparticularamount,or any amountadequate

to a particularpurpose,butan amountdeterminedprimarilyby the
need to avoid inequality (or some other form of quantitative
unfairness, like disproportionality)in the amounts awarded to
differentpersons.21Feinbergargues,persuasively,that the key to
comparativejustice is avoiding the arbitrarinessand insult that
unequal or disproportionatetreatmentinvolves (no matter what
absolute level of treatmentwe are talking about).22I suspect this
too is primaryin the resentmentpeople feel whentheyareexcluded
fromparticipationin publicaffairsin which othermembersof their
society are involved.23If this is correct,it may be impossible and
inappropriateto distinguish adequacy and equality as separate
constraintsin the case of the rightto participatein politics.
The position has to be understoodcarefully. A comparative
justice account of participatory rights still needs to be
supplementedby an accountof what is at stake in the exercise of
political power. Comparativeinjustice with regard to political
authorityis not the same as comparativeinjusticein regard,say, to
criminalpunishment:both may involve elements of insult, but the
character of the insult differs as between the two cases. The
peculiar insult to an individual, A, of A's being excluded from
politicalpowerhas to do, first,withthe impactof politicaldecisions
on A's own rights and interests,and, second, with A's possession
of the capacityto decide responsiblyaboutthose issues, given that
A's own rights and interests are not the only rights and interests
involved.Because A is affected(alongwithB, C, D,...), A can think
of himself as having standingin the matter.(This, I take it, is the
force of Colonel Rainsborough's insistence at Putney: '...the
pooresthe thatis in Englandhas a life to live as the greatesthe....')24
And because A has a sense of justice, A may think of himself as
21. See Joel Feinberg, 'NoncomparativeJustice', in his collection Rights,Justice and the
Bounds of Liberty:Essays in Social Philosophy (Princeton:PrincetonUniversity Press,
1980), pp. 266-7.
22. Ibid., pp. 286-7.
23. GeraldGaus, JustificatoryLiberalism:An Essay in Epistemologyand Political Theory
(New York: Oxford University Press, 1996), pp. 248-57 misleadingly suggests that a
concem for equality is necessarilya concernfor the vote as a personalgood, ratherthan a
concernaboutone's statusas an equal.
24. 'The Putney Debates: the Debate on the Franchise' (1647) in David Wootton (ed.)
Divine Right and Democracy: An Anthology of Political Writing in Stuart England
(Harnondsworth:PenguinBooks, 1986), p. 286.
316 JEREMY
WALDRON
havingwhatit takesto participate in decisionsof thiskind.If A is

neverthelessexcludedfromthedecision(forexample,becausethe
finaldecisionhasbeenassignedto anaristocratic elite),A will feel
slighted:he will feel thathis ownsenseofjusticeandthatof people
like him have been denigratedas inadequateto the taskof deciding,
not only something important,but something importantin which
he, A, has a stake as well as others. To feel this insult does not
requirehim to thinkthathis vote-if he hadit-would give him
substantialandpalpablepower.He knowsthatif he has the right
to participate,
so do millionsof others.All he asks-so faras his
participationis concerned-is that he and all others be treatedas
equals in mattersaffecting theirinterests,rights and duties.
IV
Althoughthe influenceof an individualvote is small,the effects
of votingby largenumbersof individualsare not. Politicsis a
serious business. In modem societies, political decisions
determine,by actionor default,things like the distributionof food,
housing,medicalandeducational services;bydetermininglawand
legislation,theydeterminethedetailsof respectfortheindividual,
the pursuitof justice, and the parametersof civil and political
freedom;and(in interactionwithotherstates)politicaldecisions
governwarandpeace,cooperationandhostility,not to mention
thecontrolandunleashingof weaponsof massdestruction.25
Jon Elsterhas suggested,on the basis of considerationslike
these, that ultimatelyany defence of the rightto participate-
indeed any defence of any system of political authority-must be
an instrumentaldefence.26After all, political decisions are
decisions about somethingwhich we all acknowledgeto be
important;so surelythatsense of the importantstakesfor which
thepoliticalgameis playedshouldgovernourthinkingaboutthe
appropriaterulesfor the game.He intendsthis as a criticismof
what are sometimescalled 'expressivist'theoriesof voting-
25. Cf. BrianBarry, 'Comment',in Stanley Benn et al., Political Participation(Canberra:
Australian National University Press, 1978), p. 47; quoted in Jon Elster, Sour Grapes:
Studies in the Subversionof Rationality(Cambridge:CambridgeUniversity Press, 1983),
op. cit., p. 99.
26. See Elster,op. cit. See also MacFarlane,op. cit., p. 141: 'It is importantto stress thatall
political rights are instrumentalrights, whose importancelies in the ends which the right
concernedmay be used to secure'.
THE RIGHTOF RIGHTS
PARTICIPATION: 317
theories which hold thatvoting is best understoodand valued as a

mode of self-expression,and thatthe point of giving everyonethe
vote is to providethem with an opportunityto identify themselves
publicly with some view on a matter of common concern.27If
voting determinesoutcomes as serious as war and peace, liberty
and oppression,poverty and equality,surely it is irresponsibleto
regardindividualvotes as a form of flamboyantself-expression.In
other words, expressivist accounts of the importance of
participationconvey the misleadingimpressionthatthe substance
of politics-the decisions to be madeandtheirimplicationsfor real
people-matter less than the catharsis, the righteous sense of
commitment, and the agonistic flair involved in publicly
identifyinga particularview as one's own.
Defenders of the expressivist view may respondby appealing
once againto Constant:they will say thatsince the actualinfluence
of my individualvote is vanishinglysmall anyway,I might as well
use it as an occasion for expression, ratherthan worry my head
aboutoutcomes,probabilitiesor consequences.But this is no more
plausible in participatorypolitics than in any other case of
collective action involving millions of individuals.Consider,for
example, roadside pollution due to traffic:I may not be able to
identify the contributionI make to the health problems of poor
families living nearfreeways,but I am well awarethattheirhealth
is imperilledby hundredsof thousandsof driversincluding me. I
know too that it is only the fitting of emissions controldevices to
automobilesby most of these driversthat can possibly abate that
threat.If I drivewithoutsuch a device, I am doing somethingwrong
despitethe indiscemibilityof theharmoccasionedby the emissions
from my car in particular:I am failing to play my part in the
collective enterpriseof averting great harm in circumstancesin
which only a collective enterprisewould do. Thoughit is truethat
the enterprise does not require the participationof absolutely
everyone (and so it does not requiremy participation,provided
enough otherstake part),still thereis no reasonof fairnessfor me
27. Elstercites the following from StanleyBenn, 'The ProblematicRationalityof Political
Participation',in Benn et al., Political Participation,op. cit., p. 19, as an example of an
expressivisttheory: '[P]olitical activity may be a form of moral self-expression,necessary
not for achieving any objective beyond itself (for the cause may be lost), nor yet for the
satisfactionof knowing thatone had let everyoneelse know thatone was on the side of the
right,but because one could not seriously claim, even to oneself, to be on that side without
expressingthe attitudeby the actions most appropriateto it in the paradigmcase.'
318 JEREMYWALDRON
in particularto relieve myself of the burdenof participation,given

that the participationof most driversis required.28So-to return
to the analogy with expressivism-even though the emissions of
an individual automobile may have only a tiny impact on the
environment,it surely does not follow that individualdrivers are
entitled to regardthe decision whetheror not to fit anti-emission
devices as an occasion for flamboyantself-expression.The stakes
are too high, and even though there are millions of us involved,
nothingbut millions of driversmakingthe rightdecision will avert
the very greatharmof pollution.
Something similar is true of the moral importance of voting.
When a governmentis elected or a plebiscite takes place, millions
of voters act togetherto secure something (which they regardas)
important, something that in our political system cannot be
secured save by our acting together in very large numbers. The
particularform this collective enterprisetakes is for us to match
our numbers against the large number of those we expect to
engage-wrongfully, we think-in a similarcollective enterprise
on the other side. If I fail to vote (for the candidate or measure
that deserves to win), I have done a wrong comparable to that
involved in the emissions example: I have failed to play my part
in the collective action that is required in order to secure an
importantgood or avoid a grave harm. And I have done so in
circumstances where there is no reason in fairness for me in
particularto relieve myself of the burdenof participation,given
that the participationof most (right-minded)citizens is required.
In these circumstances,it is irresponsiblefor me to regardmy vote
simply as an occasion for self-expression;instead I should reflect
responsibly on the difference it is actually likely to make-along
with millions of other votes-to life-and-deathissues that affect
everyone.
So: each individual should participate in a way that pays
attention to the consequences of his participation.But does it
follow, as Elster suggests, that therefore the justification of the
system of participationmust be an instrumentalone? I think not.
The argumentof the last few paragraphsconcerns the attitude a
voter should take to his exercise of the franchise. He should
28. I owe this last pointto JamesGriffin,Well-Being:Its Meaning,Measurementand Moral
Importance(Oxford:ClarendonPress), p. 206-19.
THE RIGHTOF RIGHTS
PARTICIPATION: 319
exercise it responsibly,on the basis of what his vote (along with

large numbersof others) may cause to happenin the world. But
from the fact thatconsiderationsof a certainkind ought to guide a
right-bearerin the exercise of a given right,we are not entitledto
inferthathis actuallyhavingthe rightis justifiedby considerations
of that sort.
We can infer somethingfrom the gravity of the considerations
mentionedon the previouspage. If the decision as to how to vote
should be taken seriously because of the high stakes involved, it
certainlyfollows that the questionas to whetherthere is a rightto
vote is to be taken seriously also. Because of what is at stake in
politics, the principleof participationrequiresa strongand robust
defence-one that can be presented,for example, as a credible
response to perennial worries about the risks that losers run in
submitting to majority decisions. In the context of this sort of
concern, the argumentthat they must accept such risks so that
people can enjoy the indulgence of expressingthemselves at the
ballot box does seem seriously out of its league.
We can put the same point in a slightly differentway. Votingis
a way of decidingamongimportantsocial options.Those who urge
one option or the othlerwill put forward serious justificatory
argumentsdesigned to show, first, that the stakes in the decision
are very high, and secondly, why it is importantthat those stakes
should play out in a particularway. No defence of voting or of the
right to vote can succeed if it denigratesthese argumentsor if it
relies on their being treatedas unimportant.Since an affirmation
of the right to participateaddressesthe issue of who is to make
social decisions when the stakes are this high, it requires a
justification that is, so to speak, in the same league of moral
seriousness as the justifications associated with the substantive
options thatcompete in the politicalforum.Elsteris right,then, to
condemn the frivolity of the expressivist accounts; but it is a
mistaketo thinkthatonly instrumentalconsiderationscan have the
requisitedegree of seriousness. Particularlysince it is a right we
are considering-the right to participate(in decisions affecting
one, on equal terms with others)-we should ask whetherthere is
not a defence available,with the requisitelevel of seriousness,that
is not itself an instrumentalistaccount.
320 JEREMYWALDRON
After all, theorists of rights are generally very uneasy about

instrumentaljustifications. Inasmuchas they present rights as a
means to a social end, instrumentaljustifications leave the rights
hostage to contingent calculations of utilitarianadvantage.29A
right with an instrumental justification is always liable to
managerial mani-pulation, limiting the right or modifying its
exercise in orderto fine-tune the generationof socially desirable
consequences.30And this seems to be at odds with the 'trumping'
function of rights,which is precisely to set limits on the pursuitof
social utility.31
I do not mean this as a knock-down argument against
instrumentaljustifications. It is not enough simply to repeat
'Rightsas trumps',as thoughthatwere some sortof mantra.Surely
we do not have a trumping right to harm, or to participatein
harming,otherpeople. And if, as seems to be the case, the exercise
of voting rights is capable of causing graveharmas well as doing
great good, the instrumentalistis entitled to ask what exactly is
wrong with governing their scope or distributionin a way that
minimizes the harm and maximizes the good? And he is entitled
to press for an answer,not an incantation.
The real answer that we should give him has to do with the
difficulty of specifying the goals or teloi of such instrumental
management.32 The specification of social goals-to which
participatory rights are supposed (on his account) to be
instrumental-is not only intensely controversial in modern
society; it is of course the primary subject-matterof the very
politics that participatoryrights are supposedto constitute.Those
29. See David Lyons, 'Utility and Rights', in Waldron(ed.) Theoriesof Rights, op. cit.
30. If we accept an instrumentaltheory of participation,we must accept (as MacFarlane
points out, op. cit., p. 141) that 'argumentsabout the natureand requirementsof political
rights will, when used in debates aboutthe desirabilityof restrictingor extending political
rights,be colored by the expectationsof political consequenceswhich will follow from the
changes projected.'.
31. For rightsas trumps,see RonaldDworkin,TakingRightsSeriously Rev.Edn. (London:
Duckworth,1977), esp. p. xi. See also RonaldDworkin,'Rightsas Trumps',in Waldron(ed.)
Theoriesof Rights, op. cit.
32. In an discussion of similar managerialapproachesto free speech, RobertPost remarks
that '[m]anagerialstructuresnecessarily presupposeobjectives that are unproblematicand
hence that can be used instrumentallyto regulatedomains of social life. The enterpriseof
public discourse,by contrast,...requiresthatall possible objectives, all possible versions of
nationalidentity,be renderedproblematicandopento inquiry.'(RobertPost, Constitutional
Domains: Democracy, Community,Management(Cambridge:HarvardUniversity Press,
1995), p. 275.)
THE RIGHTOF RIGHTS
PARTICIPATION: 321
who claim participatory rights are demanding the right to

participatein resolvingcontroversiesof this sort. They want to be
among those who determinethe social goals and conceptions of
the common good relative to which political managementand
political instrumentalitywill be defined. That is why the point
made earlier-about not simply inferring the need for an
instrumentaljustification of the right from the instrumental
responsibility associated with its exercise-is so important.In
deciding how to vote, the individualcitizen must figure out what
is importantin politics, and how his vote along with millions of
others can best promote it. This instrumental responsibility
requiresjudgment among ends as well as means; and it involves
choice amongintenselycontroversialalternatives.The whole point
of voting is that,in the teeth of these controversies,social ends are
to be determinedcollectively by millions of individualjudgments.
But thatcan hardlybe so if the process of enfranchising,counting
and implementingthese judgmentsis governed and modified by
some priorand entrenchedselection among the alternatives.
V
Politics is about principleas well as policy. Whathappensin the

political process determinesnot only whatour social goals are,but
also the content and distributionof individuals'rights. Of course
the political process cannotcontrolanyone's criticalsense of what
rights we have or ought to have, nor can it affect the truthabout
that issue (if talk of truthis appropriatehere). But since people
disagree about what rights we have or ought to have, the speci-
fication of our legal rights has to be accomplishedthroughsome
political process.
Rights, in other words, are no exceptionto the generalneed for
authorityin politics. Since people hold differentviews aboutrights
andsince we have to settle upon andenforcea commonview about
this, we must ask: 'Who is to have the power to make social
decisions, or by whatprocessesare social decisions to be made,on
the practical issues that competing theories of rights purportto
address?'As political philosophers,our task is to inquireinto the
principlesand criteriaby which this question of authorityis to be
answered. The claim we have been examining-the claim that
political participationis a right-constitutes an answer,or at least
322 JEREMYWALDRON
partof an answer,to the questionof authority.When someone asks,

'Who shall decide what rights we have?', one answer is: 'The
people whose rightsare in questionhave the rightto participateon
equal termsin thatdecision.' But it's not the only possible answer.
Instead of empoweringthe people on the groundsthat it is, after
all, their rights that are at stake, we might instead entrust final
authorityto a scholarly or judicial elite, on the ground that they
were more likely to get the matterright.
As we begin our discussion of these proposals,it may be worth
making a few generalobservationsaboutthe problemof authority
in politics.
(1) First, a point about disagreement.That we disagree about
some substantive issue and consequently need to invoke an
authorityto act in the face of our disagreementsis not necessarily
a concession to moral subjectivism or conventionalism or
relativism. One can recognize the existence of disagreement in
society, including disagreementon mattersof rights andjustice-
one can even acknowledge that such disagreements are, for
practical political purposes, irresolvable-without staking the
meta-ethicalclaim thatthereis no fact of the matteraboutthe issue
that the participantsare disputing.33The need for authorityin the
areaof rightsis not a consequenceof the rejectionof objectivityin
that area; it is a response to the fact that, even if there is a right
answerto the questionof whatrightswe have, still people disagree
implacablyabout what thatright answeris.
(2) Thus, secondly,we arenot to despair of substantivethought
or deliberationabout rights. What one needs to do is complement
one's theory of rights with a theory of authority,not replace the
formerwith the latter.The issue of whatcounts as the rightdecision
aboutrightsdoes not disappearthe momentwe answerthe question
'Who decides?'. On the contrary, substantive theorizing about
rights is what we expect the designated authority (e.g. the
participantsin a democracy)to do. Eachcompetingtheoryof rights
33. For the contraryview, see BenjaminBarber,StrongDemocracy:ParticipatoryPolitics
for a New Age (Berkeley: University of CaliforniaPress, 1984), p. 129: 'Where there is
certainknowledge, truescience, or absoluteright,thereis no conflict thatcannotbe resolved
by referenceto the unity of truth,and thus thereis no necessity for politics.' See also David
Estlund,'MakingTruthSafe for Democracy', in D. Copp,J. Hampton,andJ. Roemer(eds.)
The Idea of Democracy (Cambridge:CambridgeUniversity Press, 1993).
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can be understoodas a well-thought-outpiece of advice offeredto

whomeverhas been identified (by the theory of authority)as the
person to take the decision or as one of the persons who is to
providean inputinto the public choice mechanismsthatwill yield
a collective decision. The mechanismneeds inputsor the authority
needs advice (or a theory of its own), and so someone should be
thinkingthroughthe substantiveissues, undeterredin this by the
existence of disagreementand opposing alternatives.
(3) But, thirdly,a substantivetheory of rights is not itself the
theoryof authoritythatis neededin the face of disagreementabout
rights.An adequateanswerto the questionof authoritymustreally
settle the issue. It is no good saying that, when people disagree
aboutrights,the view which shouldprevailis the truthabout rights
or the best account of the rightswe have. Eachtheoristregardshis
own view as better than any of the others (otherwise he would
abandonhis theory and adopt one of the others). So this way of
settling on a social choice in the face of disagreement would
reproduceexactly the disagreementthatcalledfor anauthority-rule
in the firstplace. The theoryof authoritymust identify some view
as the one to prevail on criteria other than those which are the
source of the original disagreement. This is one of Thomas
Hobbes's contributionsto political philosophy: any theory that
makes authoritydepend on the goodness of political outcomes is
self-defeating,for it is preciselybecausepeople disagree aboutthe
goodness of outcomes that they need to set up and recognize an
authority.34
I find that people are very unhappy about this third point.
Because the liberties and interests that rights protect are so
important, they are very uncomfortable with any political
procedurethat leaves open the possibility that we will be saddled
with the (objectively)wronganswersaboutrights.This discomfort
sometimes leads them to qualify their views about authoritywith
a rider that is supposed to protect individualrights against that
possibility.Forexample,they may say, 'If the membersof a society
disagreeaboutsome issue, thena social decision shouldbe reached
by majority voting, provided individual rights are not violated
34. See ThomasHobbes, Leviathan,ed. RichardTuck (Cambridge:CambridgeUniversity
Press, 1988), Ch. 18 and ThomasHobbes,De Cive: TheEnglish Version,ed. H. Warrender
(Oxford:ClarendonPress, 1983), VI. 6.
324 JEREMYWALDRON
thereby.'But the emphasizedriderwill not workas partof a theory

of authorityfor a society in which rights themselves are a subject
of political disagreement.People who disagree inter alia about
rights will disagree about what that theory of authorityrequires,
and that latterdisagreementwill be nothing but a reproductionof
the problem about rights which indicatedthe need for a theory of
authorityin the first place.
Similarly,we cannotsay,for examplewith RonaldDworkin,that
the whole point of rights is to 'trump' or override majority
decisions.35Rights may be the very thing thatthe membersof the
society aredisagreeingabout,the veryissue they areusing a system
of voting to settle. If we say, in a situationin which people disagree
about rights, that rights may 'trump' a majority decision, it is
incumbenton us to announcewhich of the competingconceptions
of rights is to do the trumping,and how that is to be determined.
But to make such an announcementin the name of the whole
society is of course to beg the very question at issue.36
(4) It follows from what has been said that, unless one is very
lucky, there will often be a dissonancebetween what one takes to
be the rightchoice andwhatone takesto be the authoritativechoice
in political decision-making. A person who holds a complete
political theory-one thatincludes a theoryof authorityas well as
theoriesof justice, rights,andpolicy-may findhimself committed
to the view that the wrong decision ought to prevail.His theory of
justice may condemn policy B and preferpolicy A on right-based
grounds, but his theory of authority may support a decision
procedure (designed to yield a social choice in the face of
disagreement about e.g. the justice of A or B) which, when
followed, requiresthatB be implemented.
35. Dworkin, Taking Rights Seriously, op. cit., pp. 199-200. Notice that this use of the
'rights-as-trumps'idea is slightly different from that discussed above at note 35 and
accompanyingtext. Rights as trumpsover social utility is a different idea from rights as
trumps over majority-decision:see Jeremy Waldron, 'Rights as Majorities: Rousseau
Revisited', in John Chapmanand Alan Wertheimer(eds.) Nomos XXXII:Majorities and
Minorities, Yearbook of the American Society for Political and Legal Philosophy (New
York: New York University Press, 1990), reprintedin WaldronLiberalRights, op. cit.
36. See also Hobbes,Leviathan,op. cit., Ch. V, p. 33: 'Andwhen men thatthinkthemselves
wiser thanall others,clamouranddemandrightReasonforjudge; yet seek no more,but that
things should be determined,by no other men's reasonbut their own, it is as intolerablein
the society of men, as it is in play aftertrumpis turned,to use for trumpon every occasion,
that suite whereof they have most in their hand.'
THE RIGHTOF RIGHTS
PARTICIPATION: 325
This prospect is simply unavoidable.RichardWollheimcalled

it 'a paradoxin the theory of democracy.'37He imagined citizens
feeding their individualevaluationsof policies into a democratic
machine which would always choose the policy with the greatest
numberof supporters.The paradoxarises from the fact that each
citizen, if he is a democrat,will have an allegianceto the machine
andits output,as well as to the evaluationwhich counts as his own
whole-heartedinput.It is the paradoxthatallows 'one andthe same
citizen to assertthatA ought to be enacted,where A is the policy
of his choice, and B ought to be enacted, where B is the policy
chosen by the democraticmachine.'38But Wollheimwas wrongto
describeit as a paradoxof democracy.It is a generalparadoxin the
theoryof authority-a paradoxaffectingany politicaltheorywhich
complementsits accountof whatoughtto be done with an account
of how decisions ought to be made when there is disagreement
aboutwhat ought to be done.
It is general in another way as well-general as opposed to
exceptional. In modem societies, disagreement (including dis-
agreementabout principles)is one of the basic circumstancesof
political life, in roughly the way that moderatescarcityis one of
the circumstancesof justice.39When we think about distributive
justice, we mustbe readyfor situationsin whichnot everybodygets
what he wants:the circumstanceof moderatescarcitytells us that
this is not exceptional,butnormal,in the conditionsof humanlife.
We must not constructa conceptionof justice that lamentsthis as
an unfortunateaberrationor as a distastefulaspect of second-best
theory:we must ratherconstructa theorythatplaces this prospect
firmly in the core of ourthinkingaboutjustice. The same is trueof
disagreementand disappointmentin politics. In the circumstances
of politics, a person should not be surprisedto find himself from
time to time under an obligation to participate in social
arrangementshe regardsas undesirableon groundsof justice (an
obligationto pay taxes, for example, to providewelfare assistance
to people he regardsas undeserving).That is more or less bound
to happen,given thatit is the functionof law andpolitics to proceed
37. Richard Wollheim, 'A Paradox in the Theory of Democracy', in P. Laslett & W.
Runciman(eds.) Philosophy,Politics and Society Second Series (Oxford:Basil Blackwell,
1969).
38. Ibid., p. 84.
39. For 'the circumstancesof justice', see Rawls, Theoryof Justice, op. cit., pp. 126-30.
326 JEREMYWALDRON
with the building of social frameworksand the orchestrationof

collective action in circumstances where people disagree about
justice. Wollheim'sparadoxthereforeshouldnot be regardedas an
anomaly.It is a normalpredicamentfor most people at least some
of the time and for many people most of the time, in the circum-
stances of politics.
These points about Wollheim'sParadoxare quite importantfor
modem debatesaboutrights,courts,andconstitutionalism.Rights-
based judicial review of legislation is often defended by pointing
to the possibility that democratic majoritarianprocedures may
yield unjustor tyrannicaloutcomes. And so they may. But so may
any procedurethat purportsto solve the problemof social choice
in the face of disagreementsaboutwhatcounts as injusticeor what
counts as tyranny.The Americanpracticeof allowing the Supreme
Court to make the final decision (by majority voting among its
members)on issues of fundamentalrightshas on occasion yielded
egregiously unjust decisions (certainly decisions opposed, on
grounds of justice, by me and many of my friends).40Anyone
whose theoryof authoritygives the SupremeCourtpower to make
decisions must-as muchas any democrat-face up to the paradox
that the option he thinks just may sometimes not be the option
which, accordingto his theory of authority,should be followed.
Of course, as Wollheim argued at the end of his essay, the
paradox does not really involve a contradiction.A person who
believes that A is the rightdecision but B the decision that should
be implemented, is offering answers to two different, though
complementaryquestions. That B should be implemented is his
answerto the question, 'Whatare we to do, given thatwe disagree
aboutwhetherA or B is just.' ThatA is the rightdecision is his own
contributionto the disagreementthatcalled forththatquestion.
(5) A fifth point follows in connection with Wollheim's
'Paradox.'41(This is the first of the two points which, I said at the
40. For an uncontroversialexample of an egregiously unjustdecision, see the 'Dred Scott'
decision, Scott v Sandford60 US (19 How) 393 (1857). See also Lochnerv. New York198
U.S. 45 (1905), andthe morethanone hundredandfifty cases in which fine pieces of labour
and factory legislation were struck down by state and federal courts in the period 1880-
1930. (There is a list in William E. Forbath,Law and the Shaping of the American Labor
Movement(Cambridge:HarvardUniversityPress, 1991), pp. 177-92.)
41. The next few paragraphsare adapted from Jeremy Waldron,'The Circumstancesof
Integrity',Legal Theory,3 (1997), pp. 9-10.
THE RIGHTOF RIGHTS
PARTICIPATION: 327
very beginning, it was my overall aim in this paperto establish.)

We sometimes say that a principle of authority (such as
participatory majoritarianism)conflicts with other rights, for
example in situationsin which popularmajoritiesvote to impose
restrictionson some right. (I shall call the putativeright which is
the subjectof the vote, 'thetargetright'.)The exampleI mentioned
at the beginningof the paperwas a popularvote in favourof a law
restrictingthe free exercise of religion;there,religious freedomis
the targetright.In cases like this, it is commonly said thatthe two
rights (political participationand religious freedom)conflict and
one of themmustgive way: eitherthe targetrightprevails,in which
case the membersof the majoritydo not havethe participatoryright
to makewhateverlaws they like; or participationprevails,in which
case the targetright must give way to the popularwill. I believe,
however, that this is a misleading characterizationand that
'conflict' is the wrongwordto describewhatis happeningin cases
like this.
We should not talk abouta conflict between principlesA and B
(in some situationX) unless the following conditionsare satisfied:
(i) the two principlesare held by a single agent, and (ii) it is clear
whatA requiresof thatagentin X andclearwhatB requiresof that
agent in X, and (iii) those requirementsare incompatible.That is
seldom the situation as between participatoryrights and target
rights. We may know and agree what respect for participation
requiresin the given situation,but of course we do not agreeabout
the target right. (We disagree about whetherit exists; and/or we
disagreeaboutwhatit entails,if it does exist). Thatis why we need
a principleof authority.In general,principlesof authority(such as
participatorymajoritarianism)presentthemselves as principlesto
govern social decision-making in circumstances where some
membersof the society thinkthatrightsrequireone thingandother
members of the society think that rights requiresomething else.
When majority voting indicates that one of these factions is to
prevail at the level of social decision, the result will seem to the
membersof that faction to be congruentwith what is requiredby
rights, even as it seems to membersof the other faction to be at
odds with whatis requiredby rights.This disparity-as to whether
thereis actuallya conflict with rightsor not-should alertus to the
possibility that there is something of a 'category-mistake'in
treatingthe right to participateand the targetright as coordinate
328 JEREMYWALDRON
principles,competingon thesamelevel.If we talkabouta conflict

betweentargetrightsandparticipatory we seem
majoritarianism,
toimplythatsometimesthetargetrightsmightweighmoreheavily,
and sometimesparticipation mightweigh moreheavily.But the
problemis not aboutweighingandbalancing;theproblemis that
we disagreein thesecases aboutwhatexactlyrightsrequire,and
thuswe disagreeaboutwhatgoes intoone sideof thebalance.
The pointof these last few paragraphsis not to show thatwe
oughtto invokeparticipatory majoritarianismin orderto settle
disagreements aboutrights.(Thatwillbe theburdenof sectionsVI
andVII.)Thereareotherprinciplesof authorityavailable,suchas
monarchy(one supremerulerdecides),judicialaristocracy(the
finalpowerof decisionis assignedto the membersof a Supreme
Court),orvariousformsof mixedregime.All I amshowingis that
if we chooseparticipatory (indeed,if we choose
majoritarianism
it makesno senseto talkof a
any of theseprinciplesof authority),
conflictbetweentheprincipleof authoritythatwe chooseandthe
rightsaboutwhichthe authorityhasto decide.Sincewe disagree
aboutwhethertheserightsexistornotand/oraboutwhattheyentail
if theydo-if we didnotdisagreewe wouldn'tneeda principleof
authority-thereis no neutralwayof statingwhatexactlyit is that
is supposedto be competingwithparticipatory majoritarianism or
whatevertheprincipleof authorityis.
(6) Onelastpoint.Likeallrights,theonethatwe areconsidering-
participation-isan appropriate subject-matterfor authority:in
politics,therightto participate (its natureandlimits)is one of the
topicson whichwe disagreeandaboutwhichwe haveto decide.
But,unlikeotherrights,therightto participate alsopresentsitself
as a possibleanswer(or partof an answer)to the questionof
authority.That participation can be both the subject-matter of
authority as well as partof a theoryof authoritymightseemto pose
somecircularity: it seemscircularto use a principleof authorityto
settle disagreementsabout authority,or to use majoritarian
methodsto settledisagreements aboutmajoritarianism.
Infact,thereis no paradoxorviciouscirclein this.Fromtimeto
time,we mustdecidehow politicaldecisionsareto be made,and
we need a procedure,of course,to choose amongthe possible
procedures thatpresentthemselves.Forexample,thequestionas to
whetherlegislativevotingorjudicialdecisionis to be final(with
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regardto some range of issues) may be assigned to a court for

decision. To a careless eye, this may look as though we are
privilegingone of the possible outcomes-viz. judicial decision-
by using it as the procedure for deciding among the possible
outcomes. And-I have heard people say-if it makes sense to
privilegeone of the outcomesin this case, why does it not also make
sense to privilege one of the outcomes in an ordinarycase where
substantiveratherthan proceduralquestions are at stake? But to
decide amongjudicial decision andlegislativevoting by using as a
methodjudicial decision is not to privilegejudicial decision; it is
simply to use it. (At most, our use of it indicatesthat we want to
ask, 'Should we continue to use judicial decision to decide on
matterswhereimportantprinciplesareat stake,or shouldthis-i.e.
this presentdecision-be the lasttime we use it?') If we choose one
of the procedureswhich are up for decision as the procedurefor
making that very decision, we do so simply because we need a
procedureon this occasion and this may be the one we are stuck
with for the time being. It is not a sleight-of-hand,it is not a matter
of giving proceduralrightsspecial eminence,andit is not a matter
of ourconcoctingfor ourselves(anddenyingto others)an exception
to the general rule that reference to desirable outcomes cannot
infuse the proceduresused to decide among outcomes when their
desirabilityis the subjectof disagreement.
VI
Participation,I said, is about principleas much as policy. Those
who fought for the vote (whether for working people, the
propertyless,women, formerslaves, or others disenfranchisedon
grounds of race) had in mind the right to participatenot only on
policy issues but also on the great issues of principlefacing their
society. I suspectalso thatmost themfoughtfor participationin the
second or radicalsense I mentionedin section III of this paper-
participationof each individualalong with all othersin the society
as equals, not simply the participationof a democraticelement,
along with non-democraticelements,in a mixedregime.These two
points go together.Those who demandedthe rightto vote were not
seeking radicallydemocraticparticipationonly on issues of policy,
as though they would be satisfied by participationin the second
sense-the mixed-regime sense-on issues of principle. They
330 JEREMYWALDRON
believed that the issues of principleaffecting them-the people-

shouldbe settled,ultimately,by themandthem only on a basis that
paid tributeto theirfundamentalequality.42
Understoodin this way, the demandfor equal suffrageamounted
to the claim thatissues of rightshouldbe determinedby the whole
communityof right-bearers-i.e. by the whole communityof those
whose rights were at stake. As a principleof authority,it was the
claim that disagreementsabout rights should be settled by those
who were the subjectsof thatdisagreement.Those who make this
claim are awarethatit is controversial.But they thinkit wrong and
offensive to themas right-bearersto rejectthe claim out of hand.
Let me explainthatlastpointin detail,becauseit goes to the heart
of the issues aboutparticipationandrightsthatI amtryingto set out.
I have arguedelsewhere43that the idea of rights is based on a
view of the human individual as essentially a thinking agent,
endowed with an ability to deliberatemorally,to see things from
others' points view, and to transcenda preoccupationwith his or
her own particularor sectional interests. The attributionof any
right, I said, is typically an act of faith in the agency and capacity
for moral thinking of each of the individualconcerned.44This is
partlyreflectedin the fact thatrightstypicallyprovidean individual
with a protectedchoice on an issue which remainsmorallysignifi-
cant:the right-bearermustchoose betweenoptions which are right
or wrong, considerateor inconsiderate,noble or depraved.45The
faith in the right-bearer'schoice evinced by the attributionof the
right is certainly not confidence that he will unerringlymake the
rightchoice; neverthelessit is borneof a convictionthathe has the
42. Now, as I have statedit here, this sounds like an exaggerationof theirclaim, as though
it were a demandfor directdemocracy,whereasmost often what was wantedwas a vote in
the election of representatives.But the underlyingpointremains.To the extent thata system
of representationwas thoughtnecessary (on practicalgrounds),the challenge was to show
that such structureswere (in the circumstances)the best way of respectingthe principleof
individuals'political equality.To show thata given structureof representationrespectedthe
combinationof ideals in a mixedregime(equality,perhaps,butalso respectfortheexperience
andupbringingof a clerisy or aristocracy)wouldbe a differentandprobablyeasierchallenge.
43. SeeJeremyWaldron,'A Right-BasedCritiqueof ConstitutionalRights', O4ord Journal
of Legal Studies, 13(1993), 18-5 1.
44. Again, this is the equivalentfor a theoryof rightsof Rawls'semphasisof the importance
of attributingto people 'a sense ofjustice' in a theoryofjustice. See Rawls, TheoryofJustice,
op. cit., Ch. VIII, esp. pp. 505-10. See also footnote 30, above.
45. See Jeremy Waldron,'A Right to do Wrong', Ethics, 92 (1981), 21-39. (Reprintedin
Waldron,LiberalRights, op.cit.)
THE RIGHTOF RIGHTS
PARTICIPATION: 331
wherewithal to ponder responsibly whatever moral issues the

choice involves.
Beyond that,the way in whichthe idea of rightsemergedin early
modemthoughtshouldremindus thatright-bearerswereconceived
in the first instance as appropriaterights-thinkers(not merely as
potential victims or interest-bearerswhose interests needed
protection).The emergentidea of naturalrightsconnotednot just
that ordinary individuals were the proper focus of moral and
political concern,but also thatordinaryindividualswere naturally
competent judges of issues of right. Rights were attributedto
individuals in the state of nature,a circumstancein which each
person had nothing but his own resources-his own intellect, his
own reason-to indicateto him the rights that he and othershad.
Theoristssuch as John Locke were happyto embracethis idea-
again, not on account of any great confidence that individual
reasonersin the state of naturecould be relied on to come up with
conclusions that were exactly and unerringly correct or
uncontroversial,46 but on accountof theirconfidencethatthe type
of reasoning in which ordinaryindividualscould be expected to
engage was not inappropriateto the questionsthatthey necessarily
had to pose for themselves. CertainlyLocke rejectedout of hand
the view-very common today-that on issues of rights the
reasoning of judicial officials (SupremeCourtjustices and their
clerks) is to be preferredto reason andjudgmentof ordinarymen
and women.47The reasoningof legal scholarson mattersof rights
he regarded as 'artificial Ignorance, and learned Gibberish'
contemptibleandmischievousin comparisonto the straightforward
and 'unscholastick' reasoning of 'the illiterate and contemned
Mechanick'ponderinghis own rights.48The point is thatthe idea
of naturalrights-i.e. rightsin the stateof nature-was predicated
precisely on the absence of lawyerlyreasoning.It involvedinstead
46. See my essay 'Locke's Legislature' in The Dignity of Legislation (forthcoming,
CambridgeUniversityPress).
47. Cf. Locke, op. cit., II, para. 12, p. 275: '[F]or though it would be besides my present
purpose,to enterhereinto the particularsof the law of Nature,or its measuresof punishment;
yet it is certainthat there is such a Law, and that too, as intelligible and plain to a rational
Creature,and a Studierof the Law, as the positiveLaws of Common-wealths,nay possibly
plainer; As much as Reason is easier to be understood,than the Phansies and intricate
Contrivancesof Men, following contraryand hiddeninterestsput into Words.'
48. See John Locke, An Essay ConcerningHuman Understanding,ed. Peter H. Nidditch
(Oxford:ClarendonPress, 1975), Bk. III,Ch. X, p. 495.
332 JEREMYWALDRON
a tight conjunctionof concern for each individualas a creatureof

God49andrespectfor the reasonwith whichGodhadendowedhim:
TheFreedomthenof ManandLibertyof actingaccordingto his
own Will, is groundedon his havingReason,which is able to
instructhimin thatLawhe is to governhimselfby,andmakehim
knowhowfarhe is left to thefreedomof his ownwill.50
It is impossible, on this account, to think of a person as a right-
bearerandnot thinkof him as someone who has the sortof capacity
that is requiredto figure out what rightshe has.
This means that arguing about a person's rights is not like
arguingabout the rights of animals or about the preservationof a
building.When we argueaboutsomeone's rights,the subjectof the
conversationis likely to have a consideredview on the matter.And
since the point of any argumentabout rights has to do with the
respect thatis owed to this person as an active, thinkingbeing, we
are hardlyin a position to say thatourconversationtakes his rights
seriously, if at the same time we ignore or slight anythinghe has
to say about the matter.Yet again, I emphasize that this does not
meana personhas whateverrightshe thinkshe has or thathe cannot
be wrong in what he thinks. But it does shows that there is
somethingappropriateaboutthe position we areconsidering-that
the right-bearersshouldbe the ones to decide whatrightstheyhave,
if there is disagreement about that issue-and something
unpleasantlyinappropriateand disrespectfulabout the view that
questionsaboutrightsare too hardor too importantto be left to the
right-bearersthemselves to determine,on a basis of equality.
The democraticposition on these mattersis often attackedas a
violation of the principle, 'No one shall be judge in his own case'
(nemo iudex in causa sua).51Those who invoke this principle say
that at the very least it requiresthatthe final decision about rights
should not be left in the hands of the people; it should passed on,
finally, to an institution such as the U.S. Supreme Court. If the
people were to have the final say (e.g. by majority-votingamong
themselves or theirrepresentatives)theneitherthey or the majority
would be judges in theirown case. Thus it is said, in effect, thatthe
49. Locke, Two Treatises,op. cit., II, para6, p. 271.
50. Ibid., II, para63, p. 309.
51. George Kateb has tried to impress upon me the importanceof this principle in the
presentcontext. (For Locke's considerationof it, see Locke, Two Treatises,op. cit., II, para.
13, pp. 275-6.)
THE RIGHTOF RIGHTS
PARTICIPATION: 333
nemo iudex principlerequiresa mixed regime so far as issues of

right are concerned.
It is hard to see the force of this argument. Almost any
conceivable decision-rule will involve someone deciding in his
own case, in one or maybe two ways. First, unless it is seriously
imagined that issues of right shouldbe decided by an outsider-a
Rousseauian 'law-giver' perhaps,52or by some neo-colonial
institutionthatstandsin relationto a given communityas (say) the
British Privy Council stands in relation to New Zealand-such
decisions will inevitablybe madeby personswhose own rightsare
affectedby the decision. Even a SupremeCourtjustice gets to have
the rights that he determines American citizens to have in his
deliberations.53Wetoo often forgetthis:indeedoften ourscholarly
talkaboutwhen 'the people' or 'themajority'may be entrusted(by
us?) with decisions aboutrightshas somethingof the haughtyair
of a John Stuart Mill talking de haut en bas about native self-
governmentin India.
It is sometimes said that what nemo iudex implies is that a
democraticmajorityshouldnot have the final say as to whetherits
decision about rights is acceptable. If there is a question about
whether the majority'sdecision is acceptable, then the majority
shouldnot adjudicatethatquestion.Thatwill not do either.Unless
we envisage a literallyendless chain of appeals,therewill always
be some person or institutionwhose decision is final. And of that
person or institution,we could always say thatsince it has the last
word,its membersareipsofacto rulingon the acceptabilityof their
own view. (Indeed if the final court of appeal is a multi-member
court, then often the majority(of the justices) will have the final
say on the acceptability of their (majority) decision.) Facile
invocationsof nemo iudexin sua causa areno excuse for forgetting
the elementarylogic of authority:people disagreeandthereis need
for a final decision and a final decision-procedure.
Invokingnemo iudex may be appropriatewhen one individual,
class, or factionpurportsto adjudicatean issue concerningits own
interests,as opposedto those of anotherindividual,class or faction
52. Jean-JacquesRousseau,TheSocial Contract,ed. C. Betts (Oxford:OxfordUniversity
Press, 1994), Bk. II, Ch. 7, pp. 76-9.
53. I am not saying that his interest in this affects how he decides; but opponents of
majoritariandecision should not say it affects how ordinaryvoters decide either.
334 JEREMYWALDRON
or as opposed to the rest of the community.(So, historically,those

who have invoked it against democratic governmenthave often
tried to portraydemocraticgovernmentas class rule, i.e. rule by
the lower classes.)54The objectionin such cases to A being judge
in his (or its) own case is that B (the other partyin the dispute) is
excluded from the process. But it seems quite inappropriateto
invoke this principlein a case where the communityas a whole is
attempting to resolve some issue concerning the rights of all
membersof the communityand attemptingto resolve it on a basis
of equal participation. In such cases it seems not just
unobjectionablebutrightthatall those who areaffectedby an issue
of rights should participatein the decision: and if we want a Latin
tag to answer nemo iudex, we can say, 'Quod omnes tangit ab
omnibusdecidentur.'
VII
From all of this, we may conclude that the attractiveness of
democratic participationconsists largely in the fact that it is a
rights-based55 solution to the problem of disagreement about
rights.It calls upon the very capacitiesthatrightsas such connote,
and it evinces a form of respect in the resolution of political
disagreementwhich is continuous with the respect that rights as
such evoke.
It is not the only rights-basedapproach.It is possible to approach
the problem of disagreementand authorityin regardto rights on
the basis of a sortof rights-instrumentalism: one chooses whatever
decision-proceduresare most likely to answer the question 'What
rightsdo we have?' correctly.If the people or theirrepresentatives
can be relied on to come up with the rightanswerthroughmajority-
voting in a legislature,then we set up a right to participation.But
if we thinkjudges, bishops, or scholarsmight do a betterjob, then
we should forgo or qualify popularparticipationand entrust the
final decision to the courts,to a synod, or to a clerisy. I don't want
to deny thatthis is an honourableapproach.It takes very seriously
the prospectthata given proceduremay yield the wrong answer.It
says: wrong answersmay be tolerablein mattersof policy; but on
54. E.g. Aristotle, op. cit., Bk. IV.
55. For the idea of rights-based,duty-based,and goal-basedtheories,see Dworkin, Taking
RightsSeriously, op. cit., pp. 171 ff. See also Waldron,'A Right-BasedCritique',op. cit.
PARTICIPATION:
mattersof principle,if the wrong answeris given, then rights will

be violated, and it is importantto avoid this outcome if at all
possible or at least to minimizeit (to the extentwe can). The rights-
instrumentalistthinks that the participatoryapproach, which I
defended in the previous section, simply gestures towardsright-
bearers'capacitiesandhopes for the best. This, the instrumentalist
says, is irresponsible:insteadwe shouldbe doing everythingin our
power to reduce the rights-violationsthat will result from our
political processes, and that means adoptingthe minimizationof
wrong answersas our explicit criterionof authorityin this area.
Rights-instrumentalismis of course heir to the difficulty we
discussed at the end of section IV.ThoughI do not believe thereis
anything intrinsically repugnant about an instrumentalismor
consequentialismof rights,56rights-instrumentalism seems to face
the difficulty that it presupposesour possession of the truthabout
rights in designing an authoritativeprocedurewhose point it is to
settle that very issue. Consider,for example,the questionwhether
people haverightsto socio-economicassistanceand,if so, whether
these rightsimpose limits on propertyrights.A personwho thinks
that the answer to either question is 'No' will probablyrespond
differentlyto the instruction'Design a set of political procedures
most likely to yield the truth about rights' than a person who
believes thatthereare socio-economicrightsandthatthey do place
limits on property.Indeed, disparateviews on this and similar
issues explain most of the differences in constitutional-design
proposals among rights instrumentalists.57There seems, then,
somethingquestion-beggingaboutusing rights-instrumentalism as
a basis for the design of political proceduresamong people who
disagree on issues such as this.
Maybe a more modest rights-instrumentalismis available.
Instead of saying (in a question-begging way) that we should
choose those political proceduresthat are most likely to yield the
rights specified in a particularcontroversialconception,we might
say instead that we should choose or design political procedures
56. For criticismof the idea of rights-violationsas somethingto be minimized,see Nozick,
op. cit., pp. 28 ff. For the contraryview, see AmartyaSen, 'Rightsand Agency,' in Samuel
Scheffler (ed.) Consequentialismand its Critics(Oxford:OxfordUniversityPress, 1988).
57. For a discussion of the way this affected Americanconstitutionaldesign, see Jennifer
Nedelsky, Private Propertyand the Limitsof AmericanConstitutionalism:the Madisonian
Frameworkand its Legacy (Chicago:Universityof Chicago Press, 1990).
336 JEREMYWALDRON
thataremostlikelyto get at the truthaboutrights,whateverthat

truthturnsoutto be.
But this is not straightforwardeither.Consider,for a moment,
somefamiliarmovesin thismoremodestrights-instrumentalism.
If we think that deliberationaboutrightsis distortedby self-
interest,we will try to design institutionsthat insulaterights-
authoritiesfromany immediateconcernwiththe impactof their
decisionson theirowninterests.Butif we do thiswe shoulddo it
in full awarenessthatwe areflyingin the face of otherepistemic
precepts:thatdecisionsaboutrightsarebest takenby thosewho
have a sufficientstake in the matterto decide responsibly(an
argument oftenusedtojustifya property franchise),orthatthevery
idea of naturalrightscelebratesthe abilityof ordinarypeopleto
reasonresponsiblyaboutthe relationbetweentheirown interests
andthoseof others(theargument we consideredin sectionVI).We
find similarantinomieswith otherepistemicapproaches.If we
thinkthetruthaboutrightsrequirestrainingandwisdomto discern,
we mightendowscholars,evenmoralphilosophers, withpolitical
authority. If we think,on theotherhand,thatacademiccasuistry58
distortsclearthinkingon thesematters,we mightinclineinstead
to entrustthe decisionto ordinaryvoters.Indeedif we accept
anythinglike Jean-Jacques Rousseau'sconceptionof epistemic
virtueon the mattersthat are supposedto be governedby the
generalwill of the people, we might even set up democratic
proceduresthatminimizepublicdeliberation andthe opportunity
forrhetoricandfactionalism.59
A quickreviewof suchantinomiesshouldbe enoughto assure
usthatit is almostasdifficulttodefendanimpartial accountof what
themodestversionof rights-instrumentalism requiresasit is to find
a non-question-begging versionof directinstrumentalism. In the
midst of moraldisagreementwe are not in possessionof any
uncontroversial moralepistemology. Onthecontrary, mosttheories
of moralknowledge(andthusalsomosttheoriesof moralexpertise
andepistemicpathologyinmoralreasoning)areassociateddirectly
witha particular set of substantivemoralclaims:naturalism with
utilitarianism,intuitionism withdeontology,feministepistemology
58. WhatJohnLocke referredto as 'artificialIgnorance,andlearnedGibberish'(Essay, op.
cit., Bk. III, Ch. X, para.9.)
59. See Rousseau,op. cit., Bk. II, Ch. 3 and Bk. IV, Chs. 1-3.
THE RIGHTOF RIGHTS
PARTICIPATION: 337
with particular equality-claims, and so on. Even among

professional epistemologists, there is not the sort of consensus
about paths to moral truth that would be requiredfor a non-
question-begginginstrumentaldefence of political proceduresfor
use among those who disagree,fundamentally,aboutwhich moral
claims are trueand which are not.60
It seems thenthat,as a basis for addressingthe issue of authority,
rights-instrumentalism faces difficultieswhich have to do, notjust
with contingentpracticalities,but with a failureultimatelyto take
seriously the problem of disagreementwhich poses the issue of
authorityin the first place. People disagreeaboutrights;they also
disagree aboutthe best way to reasonaboutrights;so they simply
cannot in their collective capacity follow the instruction'Confer
the authorityto resolve these disagreementson those personsand
proceduresmost likely to yield the rightanswer'in a non-question-
begging way.61
It follows, I think, that the theory which rejects rights-
instrumentalism,and which maintainsinstead that right-bearers
have the rightto resolve disagreementsaboutwhatrightsthey have
amongthemselvesandon roughlyequalterms,is the only plausible
rights-basedtheoryof authorityleft in the field. Not only does it not
face the question-beggingdifficultiesof rights-instrumentalism, it
also has the advantageover the latterthat it does not consecrate
forms of authoritywhich are radicallyat odds with those entrusted
to ordinaryright-bearersin theordinaryexerciseandcontemplation
of theirrights.In this sense, one can plausiblysay thatparticipation
is the rights-theorist'smost natural answer to the problem of
authorityand the disagreementsaboutrights that give rise to that
problem-or, in short, that the right to participateis indeed, as
WilliamCobbettsuggested, 'the rightof rights'.
ColumbiaLaw School
435 West116 Street
New York,NY 10027
USA
60. See also the excellent discussion in Gaus, op. cit., p. 185.
61. See alsoJeremyWaldron,'TheIrrelevanceof MoralObjectivity',in RobertGeorge(ed.)
NaturalLaw Theory:ContemporaryEssays (Oxford:ClarendonPress, 1992), 158-87.

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Participation: The Right of Rights

Author(s): Jeremy Waldron

*Meeting of the Aristotelian Society, held in Senate House, University of London, on

it's a matterof this being a right whose exercise seems peculiarly

We can see this if we consider MauriceCranston'suse of the

maybe the two are complementary.But surely we do not have to

this. The demandis not merelythat thereshouldbe a popular

individuallevel.13It mustbe adequate,thatis, for the purposesfor

multitude,the individualcan almostneverperceivethe influencehe

certaingoods is not anyparticularamount,or any amountadequate

havingwhatit takesto participate in decisionsof thiskind.If A is

theories which hold thatvoting is best understoodand valued as a

in particularto relieve myself of the burdenof participation,given

exercise it responsibly,on the basis of what his vote (along with

After all, theorists of rights are generally very uneasy about

who claim participatory rights are demanding the right to

Politics is about principleas well as policy. Whathappensin the

partof an answer,to the questionof authority.When someone asks,

can be understoodas a well-thought-outpiece of advice offeredto

thereby.'But the emphasizedriderwill not workas partof a theory

This prospect is simply unavoidable.RichardWollheimcalled

with the building of social frameworksand the orchestrationof

very beginning, it was my overall aim in this paperto establish.)

principles,competingon thesamelevel.If we talkabouta conflict

regardto some range of issues) may be assigned to a court for

believed that the issues of principleaffecting them-the people-

wherewithal to ponder responsibly whatever moral issues the

a tight conjunctionof concern for each individualas a creatureof

nemo iudex principlerequiresa mixed regime so far as issues of

or as opposed to the rest of the community.(So, historically,those

mattersof principle,if the wrong answeris given, then rights will

thataremostlikelyto get at the truthaboutrights,whateverthat

with particular equality-claims, and so on. Even among

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