New York University, School of Law: Public Law and Legal Theory Research Paper Series Research Paper No. 68

New York University, School of Law
Public Law and Legal Theory Research Paper Series

Research Paper No. 68
and
University of Texas Law School

Public Law and Legal Theory Research Paper Series
Research Paper No. 55
August 2003
The Many as One:

Integrity and Group Choice in Paradoxical Cases
Lewis A. Kornhauser
Lawrence G. Sager
This paper can be downloaded without charge from the Social Science Research Network
Electronic Paper collection: http://ssrn.com/abstract_id=441466
THE MANY AS ONE: INTEGRITY AND GROUP CHOICE IN PARADOXICAL
CASES 1
by
Lewis A. Kornhauser2 and Lawrence G. Sager3
I. PARADOX AND THE LIMITS OF INTEGRITY
A. Integrity.
A recurring theme in recent discourse about political morality is the idea that political
communities should be understood not merely as the collective instrumentalities through which
individuals improve their well-being and discharge their obligations to their fellow citizens but as though
they themselves were moral agents,. This understanding of political communities permits -- or more
importantly, requires -- communities to hold and to act upon values and beliefs that may not
predominate, or. in combination, even exist, among the individuals that compose the community. The
obvious fact that political communities can only act through individuals does not undercut the idea of
community agency: In assessing what acts may appropriately be taken in the name of the community,
these theories direct officials to recognize and conform to the moral responsibilities that attach to the
community that underwrites their public acts.
1
Copyright 2002 Lewis A. Kornhauser and Lawrence G. Sager
2
Alfred and Gail Engelberg Professor of Law, New York University
3
Alice Jane Drysdale Sheffield Regents Chair in Law, University of Texas. We thank Jean-
Pierre Benoit, Brian Leiter, ? and participants in faculty seminars at NYU School of Law and The
University of Texas School of Law. Both authors gratefully acknowledge the financial support of the
Filomen d’Agostino and Max E. Greenberg Research Fund of New York University School of Law.
Kornhauser/Sager – 15 August 2003 Page 2
Ronald Dworkin has given a name and a paradigmatic form to the idea of community agency,
arguing for the independent political virtue of "integrity". 4 Integrity requires that the normative choices of
a political community enjoy the same constancy and coherence that we would expect of the
comparable decisions of single person. For an independent political virtue of community behavior in
general, integrity in Dworkin's hands seems oddly fixated on the behavior of judges, but that is not our
principal concern here. For our purposes, Dworkin's integrity is a quintessential instance of community
agency, requiring that the community behave as though it were an individual, with responsibilities keyed
to its own communal acts.
More recently, Philip Pettit has adopted a view of "republican community" and deliberative
democracy that takes the idea of integrity seriously as a requirement of political life generally.5 While
Pettit does not invoke the virtue of integrity in name, he, like Dworkin, wants to personify the political
community (and many other groups as well), making the group as a whole -- rather than its members
individually--accountable for reasoned choice. To this end, Pettit has argued that collective action by a
political community or other deliberative group is justified only when there is agreement on the reasons
underlying the action in question; agreement merely on outcomes is not sufficient. This demand assumes
special force in a group of cases – which we have in our earlier writing called paradoxical cases –
where a group’s consensus on underlying reasons diverges from that group’s consensus on the ultimate
4
Ronald Dworkin, Law’s Empire esp. Chapters 5 and 6. (Harvard University Press 1986)
5
Philip Pettit, Republicanism: A Theory of Freedom and Government, (Oxford: Oxford
University Press, 1997); Pettit, “Democracy, Electoral and Contestatory,” Nomos (forthcoming); Pettit,
“The Discursive Dilemma and Social Ontology” mimeo.
outcome. In paradoxical cases, Pettit's insistence on the priority of underlying reasons will lead to
outcomes that would be rejected by the community in a referendum, and could lead to combinations of
outcomes that would be supported by few if any members of the community.
We first encountered the phenomenon of paradoxical cases in the course of our study of
adjudication by multi-judge courts. A multi-judge court has at least two quite distinct ways of collecting
the votes of its member judges and producing results in the cases before the court: the court can
decide each salient issue by a vote among the judges, and then arrive at an outcome by assembling
these results of these salient issues according to the logic dictated by doctrine. In a contract case for
example, the court as a whole can decide first whether there was a valid contract entered into by the
parties, and second, whether there was a material breach of that contract. Doctrine then dictates that
the court find that there is an actionable breach of promise if and only if the plaintiff prevailed on each of
these questions. Or the court can decide the case as a whole. Assuming in this instance that there is no
controversy as to the correct remedy, each judge then will vote directly on the question of whether the
conduct of the plaintiff was an actionable breach of promise, and the court will tally these bottom-line
votes to arrive at its aggregate judgment in the case. To be sure, in this second instance doctrine will
dictate that each judge decide for herself whether there was valid contract and whether there was a
material breach, but the relevant judgment from the court’s standpoint will be the judges’ bottom line on
the case as a whole. In most cases, nothing will turn on this choice of voting protocols. But in some
cases, the views of the judges will be such that tallying their votes on salient issues will produce a
different outcome than will tallying their votes on the case as a whole. These are what we call
paradoxical cases, and in paradoxical cases – where reasons and outcomes pull apart – the court’s
choice of voting protocols will be decisive to the outcome of the case.
When we encountered the phenomenon of paradoxical cases, we asked whether multi-judge
courts should proceed on an issue-by-issue or case-by-case basis. Even in the relatively bounded and
formal context of Anglo-American adjudication, we found ourselves strongly of the view that a
sweeping choice in favor of either multi-judge protocol would be a mistake: there are good reasons
which cut in favor of each; and in some circumstances the best course for a multi-judge court clearly
will be to attend to issues while other circumstances will demand that a multi-judge court attend to
outcomes.6 {{Say a bit more}}
We revisit paradoxical cases in this essay, and do so in the broader setting of democratic
group choice. In this setting, we conclude, it is even clearer that a blanket norm ceding priority to
either reasons or outcomes is neither practical nor desirable: In real world political communities such a
blanket norm would be impossible to effectuate without radical alteration of existing institutions; and,
were we willing and to make such radical changes, we would be if anything worse off for the venture.
Also of interest to us in this essay is the conceptual difficulty that paradoxical cases pose for an
integrity theorist. As we shall see, the salient feature of paradoxical cases is precisely that a group
which confronts such cases cannot behave as would an ideal individual decision-maker. A group
6
Kornhauser and Sager, “Unpacking the Court,” 96 Yale L.J. 82 -117 (1986); Kornhauser,
"Modeling Collegial Courts I: Path Dependence," 12 Internat'l Rev. Law & Econ. 169 (1992).;
Kornhauser, "Modeling Collegial Courts. II. Legal Doctrine," 8 J. Law, Econ. & Org. 441 (1992);
Kornhauser and Sager, "The One and the Many: Adjudication in Collegial Courts," 81 Calif. L. Rev.
1 (1993) .
which decides a paradoxical case has to choose between integrity in reasons and integrity in outcomes.
Perfect integrity is impossible. That being so, a theorist who argues for group integrity has to be
satisfied with partial integrity, and moreover, has to explain why the part of integrity upon which he is
insisting is the right part. Seen in this light, the work of both Phillip Pettit and Ronald Dworkin is
conceptually incomplete: Both offer what are in fact partial conceptions of integrity; partial conceptions
that are at radical odds with each other. But neither acknowledges the partial quality of his conception
and perforce neither fully defends the particular slice of integrity upon which he insists.
B. The Impossibility of Perfect Integrity in Paradoxical Cases
Layered Choices. Most decisions by individuals (and therefore by groups) are layered: in
potential, at least, they can be described or motivated at more than one level. If, for example, Liza
decides to put down her murder mystery and turn to the enterprise of writing an essay, we could stop
just there and observe that Liza had made a choice. But we could press further and try to understand
how to justify or explain that choice: It might be that as of that moment Liza found writing more
pleasant than reading her mystery. But quite the reverse could also be true and she could have acted
out of a realization that the essay has a deadline attached that begs for action. Or she may feel that in
some other way she will be letting her co-author down if she does not work on the essay. Or perhaps
she has a view about how one should spend one’s time. Or perhaps she believes that the publication of
her essay is vital to the world in some way.
Behind each of these reasons, however they cut, are other reasons. Liza may like to write
because it exercises her mind in a way that she finds pleasant or gratifying. Or she may not like to
write because it makes her anxious. The deadline may be important because Liza likes the journal or
because she feels indebted to its editors, and so on.
At the individual level, at least in principle, it ought to be possible to make sense out of Liza’s
decision to lay the book aside and fire up her computer. Her interests and judgments may press in
different ways and need to be set off against one another; and it is unlikely that she has in any
conscious way taken account of all reasons she has for choosing one course against the other. And
heavens knows that akrasia – a failure of the will -- is more than a theoretical possibility. But in
principle, Liza can hope that her decision, all-things-considered, connects rationally to the things that
she values.
Group Choice and Paradox. When we move to group decisions, however, this rational
connection between decisions (outcomes) and reasons may not be possible, even setting aside human
foibles and the limits of vision and understanding. We can hope that the interests and judgments of
each individual who is contributing to the decisions are rationally supportive of the chosen outcome of
the matter at hand; but when we aggregate the views of the participating individuals it may be logically
impossible to line up the prevailing views at each pertinent level with those at other levels.
Multi-judge courts offer a clear instance of the impossibility of group rationality in certain cases.
Suppose that a panel of three judges must decide a tort case that raises both a causation and a duty
issue. For plaintiff to prevail, she must show that defendant’s negligence caused her injury and that the
defendant had a duty to take care.7 The question of whether the defendant had a duty towards the
plaintiff is clearly a legal one. The causation questions, framed as a question of law, is: Could a
reasonable person have concluded that the defendant’s actions caused the harm? Legal doctrine
determines the relation between the various resolutions of these two issues and the outcome in the case.
Actual tort doctrine requires that, for plaintiff to prevail, she must prevail on each issue. Suppose that
the judgments of each of the three judges is as in table 1:
Table 1
Palsgraf v. Long Island Railroad

Causation Duty Individual View of Case
Judge X Y Y Y
Judge Y N Y N
Judge Z Y N N
Aggregated View of Issues Y Y Y / N
The court might aggregate its votes in either of two ways. First, under a case-by-case protocol
(outcome-based voting), each judge considers each issue and, given the doctrine, reaches a decision in
the case. In the case in table 1, then, the court rules that plaintiff has no right to recover because a
majority of the court – judges Y and Z – believe that plaintiff has no right to recover.
Alternatively, the court might choose to aggregate its judgments issue-by-issue (reason-based
voting). Under this procedure, each judge reaches a judgment on each issue and the court renders
7
These two issues are presented by Palsgraf v. Long Island Railroad.
judgment on each issue by a majority vote. Doctrine then determines the resolution of the case. Under
this aggregation procedure, the court rules that plaintiff is entitled to recover because two of three
judges – X and Z – conclude that defendant caused plaintiff’s injury while two judges – X and Y
conclude that defendant had a duty. 8 The result of the adjudication thus depends critically on which
voting procedure the court adopts.
“Perfect” Integrity and Paradoxical Group Decisions. In our earlier work we called this
conflict between the results of the different aggregation methods the doctrinal paradox; when it
obtains, a court must choose between aggregating its members’ judgments over the relevant issues and
aggregating its members’ judgments over the case itself. As Philip Pettit has emphasized, a
comparably paradoxical distribution of preferences or judgments could exist in any group with regard to
a looming decision. We might then do well to change vocabularies from “issues” and “cases” to the
more generic “reasons” and “outcomes”, but the paradoxical distribution makes much the same
mischief: In paradoxical cases a group can rationally order its impulses over the applicable reasons by
voting on them; or it can rationally order its impulses over the applicable outcomes by voting on them,
but it cannot do both. In contrast, an idealized individual who had worked out all the kinks could
rationally order her views over both her reasons and her bottom-line choices or outcomes. If that is
what integrity requires, perfect integrity is impossible for groups.
8
The U.S. Supreme Court does not in fact use either procedure. As we noted in “The One and
the Many,” supra note?, the choice between the two procedures described in the text is not centralized
by formal Court rule or even by settled by Court practice. In actual practice, each justice determines
how to aggregate votes when s/he casts her own ballot.
Integrity and Paradox in Ronald Dworkin’s and Philip Pettit’s Work. The demand that
the decisions of groups be integrated in the way that we think the decisions of individuals should be
integrated can assume a number of forms. Integrity might be concerned with the integration of different
views held by members of a decision-making group with regard to a single decision; for convenience
we can call this synchronic integrity. Integrity might be concerned with the integration of a string of
decisions made by the group over time; we can call this diachronic integrity. Both synchronic and
diachronic integrity can be further subdivided: Either might be concerned with the integration of the
reasons behind a group’s decision or with the outcomes reached by the group. We can depict these
possible targets of the demand for integration in a simple matrix:
INTEGRITY Synchronic Diachronic
Reasons I: Synchronic, Reasons III: Diachronic, Reasons
Outcomes II: Synchronic, Outcomes IV: Diachronic, Outcomes
For Ronald Dworkin, integrity is concerned solely with Box IV on this matrix, with the
integration of the substantive outcomes over time. Dworkinian judges must have reasons for their
decisions, and their reasons are constrained and inspired by prior decisions; but it is the bottom line of
those prior decisions, not the reasons contemporaneously offered to justify them that matters. So
Hercules – Dworkin’s idealized judge– labors to find the best normative principle that retrospectively
fits the outcomes of his court’s prior decisions.
Synchronic integration has never been part of Dworkin’s articulated view of the requirements of
integrity. This may account for a prominent limitation in Dworkin’s otherwise rich vision of legal
adjudication. However busy Hercules finds himself to be, he is condemned to labor on alone;
Dworkin has never turned his attention to the fact that appellate adjudication is conducted by groups,
and hence has never taken up the variety of questions involving group deliberation and group resolution.
Given the great emphasis on adjudicatory responsibility in his work, this lacuna is a misfortune, since it
leaves many interesting and problematic choices of a conscientious judge unaddressed. Why does an
increase in the number of judges contribute to the capacity of an appellate court to arrive at the best
decision?9 Should the judge who would be Hercules always render the best decision conceived of in
isolation, or should she compromise her views of the best decision with an eye to bringing the court of
which she is a member as close as possible to the best decision? Is the license of a judge to continue to
dissent from principles upon which the majority of the court has agreed measured strictly and simply by
the demands of fit and value that Hercules would confront on his own, or are there additional variables
of obligation introduced by the group nature of appellate adjudication? One of the matters
pretermitted by Hercules’ solipsism and Dworkin’s underlying preoccupation with diachronic
integration is the doctrinal paradox and its threat to perfect integrity.10
9
Kornhauser and Sager, “Unpacking the Court,” 96 Yale L.J. 82 -117 (1986).
10
When a judge Liza sits on a collegial court, she does not have complete control over the
outcome of the case. Her judgment with the judgment of the other judges on the panel will determine
the result in the case before her. What does it mean, in these circumstances, for her to make the law
the best it can be? Dworkin might answer this question in a variety of distinct ways. He might
contend, for example, that Liza ought to behave as the single judge does in his current theory; she
should vote for the outcome dictated by her best interpretation of the law and express those reasons in
her opinion regardless of how other judges might vote. On the other hand, Dworkin might believe
that, in some circumstances, Liza should write (or join) an opinion that expresses reasons that differ in
Philip Pettit, in contrast, is acutely concerned with synchronic integration, with the appropriate
connection between a given decision by a group and the distribution of opinions within that group as to
the decision in question. For him, accordingly, paradoxical cases are very much in the picture, not so
much as a problem, perhaps, as an opportunity – an opportunity because when a group’s consensus
over reasons and its consensus over outcomes pull apart we have the occasion to ask which consensus
should matter and why.
Pettit, as we have seen, emphatically casts his lot with group reasons. His reasons for a
sweeping embrace of reasons grow out of his visions of deliberative democracy and the justification of
a group’s authority over members of the group whose interests may be adversely affected by the
exercise of that authority. Pettit believes that a group is justified in imposing on its members when it
has committed itself to underlying premises – to reasons– underlying a proposed imposition. Further,
he stresses, members of the group must have had a well-formed opportunity to contest the relevant
underlying premises or reasons. It follows, Pettit, believes, that it is the collective state of the group’s
judgment as to reasons that must matter.
Our contrast of Dworkin’s and Pettit’s view reveals another important dimension of theories of
integrity: integrity’s plausibility, normative appeal practical requirements may vary across political
institutions. Here too the views of Dworkin and Pettit present a sharp and largely undefended contrast:
some respects from her own best interpretation. This latter view is more plausible when one believes
that Liza’s interpretation must make sense not only of the result in a case – whether plaintiff prevailed or
not– but also of the reasons offered in the opinion for that result. If one adopted this second position on
Dworkinian adjudication, distributions of opinion that yield a doctrinal paradox will indeed present
difficult cases for Dworkinian judges.
Dworkin, while stipulating in passing that integrity binds all political actors, is all but exclusively
preoccupied with the decisions of judges; Pettit, on the other hand, largely ignores judges and courts,
and focuses on legislators. The polarity of Dworkin’s and Pettit’s views is thus perfect: Dworkin offers
a conception of diachronic, outcome-based judicial integrity; Pettit provides a conception of
synchronic, reason-based legislative integrity.
To summarize: (1) It is in the nature or definition of paradoxical cases that perfect integrity is
impossible; (2) Neither Dworkin nor Pettit in fact aims at perfect integrity; and (3) On the most salient
integrative criteria, Dworkin and Pettit find themselves at nearly polar odds, with Dworkin concerned
with integrity of outcomes across cases and Pettit concerned with integrity of reasons across the
opinions held by the members of a given group with regard to a particular decision,.11 and (4) The
contrast between Dworkin and Pettit extends to the level of institutions, with Dworkin all but exclusively
preoccupied with courts and Pettit with legislatures or their equivalent.
In much of what follows, our concern is with extended our consideration of paradoxical cases
into the broader domain of democratic group choice. Broadly, our critical focus will be on the idea of
reason-based, legislative integrity. But there are at least two propositions that we hope to draw from
the refinement of the idea of integrity made possible by a comparison of Dworkin’s and Pettit’s versions
11
In Section __, below, we observe that Pettit’s concern with integrity across a group’s
member’s reasons for resolving a single question before it irresistibly entails a concern with integrity of
a group’s decision across cases. It is possible that Dworkin’s concern with integrity across a group’s
outcomes over time has a similar entailment regarding integrity across a group’s members basis for their
choice in an individual case. We are unaware of any such entailment, however. We mention the
possibility of symmetry to signal the rich and largely unexplored territory of integrity as a norm of group
behavior.
of integrity. First, however appealing the basic idea of holding groups to account as though they were
individuals may be, it cannot without more be the grounds for either Pettit’s insistence on the priority of
reasons or Dworkin’s view of the behavior of the ideal judge. In paradoxical cases, at least, perfect
integrity is impossible, and the partial conceptions of integrity favored by both Pettit and Dworkin
require a defense before they can do any work at all. Second, although the brunt of our argument is
directed against Pettit’s position, we will spend some time suggesting that while Dworkin is exempt
from our criticisms of Pettit, precisely those features of Dworkin’s view that exempt him from the
difficulties faced by Pettit are grounds for some of most serious doubts about Dworkin’s view.
But, for the moment, it is reason-based, legislative integrity that draws our attention. We begin
by showing that groups make many different kinds of decisions, and further, that the demands or
reason-based integrity are obviously implausible with regard to many types of group decisions.
II. GROUPS AND REASONS
A. The Choice of a Restaurant. Suppose three friends plan to go to dinner together, and
undertake to choose a restaurant. Only two restaurants are in contention, and the friends divide as
follows: Jane and Patricia favor Jean Pierre's Bistro, and Lisa favors Ribs-R'-Us. Barring some
exceptional circumstance, Jean Pierre's Bistro carries the day, a commonplace instance of petit (not
Pettit) democracy. There are good reasons for this outcome, reasons sounding both in treating each
friend as an equal and in roughly maximizing their aggregate welfare.
Each of the friends’ choice of restaurant, of course, is an “outcome” of sorts, driven by her own
reason or reasons. But nothing encourages us to push past the friends' bottom line choices of restaurant
to their reasons for their respective choices; it is clear that the trio should simply go to the restaurant
favored by two of them, full stop. If somehow we were tempted to learn of their reasons, nothing
would change.
Imagine, for example, that we learn that Patricia favors Jean Pierre's because she knows the
owner, and strongly prefers a friendly environment when she dines out; Jane's choice of Jean Pierre's is
based on the quality of the food served there; and Liza's choice of Ribs-R'-Us is based on its location
(It's a cold day, and the ribs joint is just around the corner). Note that the absence of any agreement
on reasons is unproblematic from the vantage of either equity or welfare.
Or imagine that we encounter a somewhat more interesting structure of reasons. In this
variation, we learn that within broad geographic and other ancillary concerns, Patricia's restaurant
choices are only driven by the quality of the food served, and that in her view, Jean Pierre's wins hands
down; Liza too is motivated by concerns of quality, but she believes Ribs R.Us is the better restaurant.
Jane, by contrast, is relatively indifferent to food quality, and always chooses on grounds of
convenience, and in this variation, Jean Pierre's is just around the corner. If pressed to offer her view of
quality, Jane would emphatically agree with Liza that Ribs R’Us produces a better meal. It may help to
view this structure of reasons schematically:

Table 2
The Restaurant Case With A Paradoxical Structure of Reasons

Quality Convenience Grounds of Choice Individual
Outcomes
Patricia BISTRO -- Quality BISTRO
Lisa RIBS -- Quality RIBS
Jane RIBS BISTRO Convenience BISTRO
Aggregated Reasons RIBS ? Quality RIBS / BISTRO
This distribution of reasons is, as a formal matter, paradoxical. If a vote were taken first on the
question of whether quality or proximity should be the test, Patricia and Lisa would prevail on quality
being the guide. And if then the question of which restaurant served better food was put, the views of
Jane and Lisa would prevail and Ribs-R'-Us would win the day. But asked simply which restaurant
they wanted to eat at, Patricia and Lisa would agree on Jean Pierre's.
This case, however, is paradoxical in form only. As we noted at the outset, the reasons the
friends have for their choices are unimportant in a case like this, and the choice of Jean Pierre’s Bistro
thus remains the unexceptional outcome. It would be bizarre to deny Jane her capacity to vote for
Jean Pierre's on grounds of proximity, notwithstanding the preference of her compatriots for quality
over convenience.
B. Group Decisions That Aggregate Preferences. We can generalize from the restaurant
example: group choices that depend on the aggregation of individual preferences are poor candidates
for the claim that it is individual reasons rather than individual outcomes that should govern if the two
should pull apart. The scope and force of this observation, of course, depend on what we mean when
we speak of individual preferences and of groups decisions that depend on them. It is to this prior
question that we now turn.
1. Preferences and Judgments. Preferences are those qualitative rankings or choices over
which the individual is in a familiar way sovereign. Consider Marina who must choose her diet. She
may express a preference for fish over meat –all things considered she would rather eat sole than
sirloin. Contrast this expression of preference with the rendering of a judgment concerning the same
dietary choice, in which Marina asserts that fish is healthier than meat. Marina’s preference for fish
differs from her parallel judgment about its healthiness in at least two respects.
First, Marina’s expression of preference is a personal claim; her assertion that she prefers sole
to sirloin does not imply that others do or ought to do likewise. Second, an individual is sovereign over
her preferences but not over her judgments. Sovereignty, in this context, means that the individual has
the final say on the content of her preferences. So, if Marina’s friend Henry expresses a preference for
meat over fish, that gives, Marina no reason to reconsider her own preference. To be sure, Henry can
plausibly assert that Marina in fact prefers meat to fish;12 Marina can surely be wrong about her
preferences, as, for example, she might discover when she finally relented and permitted herself to
12
Henry might point to instances in which Marina chose meat over fish or to remarks she made
when she tasted each. These assertions are evidence of Marina’s preference and Marina might have
erred in her initial expression of preference for fish. But she may not have. She can always reconcile
her prior choices in some way; she may even assert that her preference has changed.
enjoy sirloin -- or for that matter, green eggs and ham. And she could be mistaken about the
connection between her preferences and her preference-driven choices, as could be the case with
Patricia in the paradoxical form of our restaurant story if unbeknownst to her the chef and menu of Jean
Pierre's had changed for the worse; or with Jane if it turned out that there was a shortcut to Ribs R’ Us
that made the trip there the shortest and most protected from the rain and cold. But in all of these
cases and others like them, in the end, it is ultimately a claim about Marina and about her preferences
among various states of affairs that must govern. In this sense Marina is sovereign in the domain of her
preferences.
Judgments, in contrast, are general rather than personal in their scope. When Marina judges
sole healthier than sirloin, she makes a broader claim, one that extends to others. That is, Marina does
not claim merely that sole is healthier than sirloin for her but that it is healthier for some class of
individuals.13
Moreover, judgments perforce appeal to external standards of validity. The speaker is not
sovereign over the judgments she renders; she cannot, simply by rendering a judgment, insure its
validity. If Henry contradicts her claim that sole is healthier than sirloin, Marina has reason to reconsider
her judgment. Both Marina and Henry are subjects of the best answer to the question of the healthiness
13
In some instances, Marina’s claim might be “x is healthier than y for me”. If Marina has low
blood pressure, for example, she might assert that a very salty dish is healthier for her than a low salt
dish even if the low salt dish is healthier for most people. Even in this context, however, Marina’s claim
applies to everyone similarly situated; i.e., to everyone with a similar physiology. Her preference for
fish over meat, however, is purely personal; it does not generalize to anyone else, no matter how
similar. Marina’s identical twin Bovia, with identical genetic make-up, raised in the same family, and
the product of the same schools quite sensibly may express a preference for meat over fish.
of the two foods: Neither is sovereign over that question.
2. Preference Aggregation And The Primacy Of Outcomes. As the restaurant example
illustrates, groups engaged in the business of aggregating preferences typically will have very good
reasons for ignoring the reasons underlying their members’ preferences.
The obvious primacy of overall preferences or outcomes in the restaurant cases in not an
artifact of the relative banality of the stakes in these cases or of some other special aspect of the
example. Preference-driven group decisions will typically look like this. Consider an example where
members of a community are deciding whether to give road-building or enhancement of the commons
first call on a budgetary surplus. And imagine that the members who favor one alternative or the other
have very different reasons for preferring their alternative of choice: Some want a commons for sheep-
grazing, some for bucolic beauty, and so forth. Likewise the road project, whose supporters are
composed by sub-groups with very different reasons for their common enthusiasm. Like our first
restaurant variation, it seems unimportant that the favored alternative is supported by a collection of
reasons, no one of which commands majority support; and this would be true even if one of the reasons
for the disfavored alternative commanded more support than any one of the reasons for the favored
alternative. Or, suppose that the distribution of community preferences over the choice is paradoxical,
so that a choice has to be made between reasons and outcome. Where a clear majority favor one
alternative on an overall, all-things-considered basis, it seems obvious that the favored alternative is the
one that ought to be pursued.
Many political choices made by legislatures will have this structure. The polity aims to
maximize the welfare of its citizens – or, at least, to further that welfare. That task requires the
determination and aggregation of the preferences of the citizenry. When these preferences conflict, as
they do in the example in the previous paragraph, a concern for equality supports the use of majority
rule to resolve the conflict. If an individual contests the community decision, the community need not,
and does not, respond, at the level of reasons underlying individual preferences but at the level of
reasons for the choice of majority rule as the appropriate mechanism for aggregating conflicting
preferences.
The point, it bears emphasis, is not that preference-driven choices by groups are unreasoned.
Rather, the point is that groups have the best of reasons -- equity and overall welfare -- for responding
to the bottom-line preferences of their members when confronted with such choices.
B. Group Decisions That Aggregate Judgments
We turn, then, to group decisions that aggregate judgments. Here another distinction presents
itself: the distinction between judgments of fact and judgments of value. We might express this
distinction more accurately as the distinction between descriptive and evaluative judgments, thereby
evading some questions concerning the ontology of values.
1. Aggregating Judgments of Fact. Imagine that a community is considering a proposal to
reduce automobile emissions radically (RAD), at a considerable cost to the present economy and to the
welfare of many present members of the community. The goad to consider such a dramatic proposal is
a view among some that failing such a step, the greenhouse effect in the foreseeable future will produce
so substantial a rise in temperature as to diminish drastically the welfare of the community (HOT).
There is unanimous agreement that if this dire prophesy is correct then RAD is the appropriate course.
The only disagreement is factual. Some are confident of HOT. Some think that the science upon which
HOT is based is simply wrong, and that even if the community continues on the trajectory of its present
behavior and technology, the greenhouse effect will be trivial or possibly even non-existent. Some hold
yet another view (NEW), to the effect that even if HOT were an accurate prediction under present
technology, new technology will come along which will rescue the community from HOT without the
painful remedy of RAD under present technology. But everyone agrees that if HOT is true and NEW
is false, then and only then is RAD justified. Imagine that the decision has been confided to a panel of
three expert policymakers, who, as it happens, exactly mirror the distribution of factual judgments
among the entire scientific community, as well as the community as a whole:
Table 3
Factual Judgments With Regard to RAD

HOT NEW INDIVIDUAL SUPPORT OF RAD
PM X Y N Y
PM Y Y Y N
PM Z N N N
AGGREGATED REASONS Y N Y / N
Note that once we have moved from the realm of preference to that of judgment, it no longer
seems nonsensical to suggest that reasons rather than outcome should be favored in the event that they
paradoxically pull apart.
There are two concerns --possibly overlapping --implicated by the choice of voting
protocols in such a case. The first is epistemic: the community has a large stake in getting the
answer to this predictive question right. The second is democratic: In the face of entrenched
factual disagreement the question is whether fairness sponsors the choice of one voting protocol
over the other.
On epistemic grounds the choice of voting protocol would seem to depend on close
questions of the state of empirical conviction. Imagine, first, the following case, with the
numbers reflecting the state of certainty with which the policy makers hold their various views:
Table 4
Convictions With Regard to RAD

PM X Y,.55 N,.55 Y
PM Y Y,.55 Y,.92 N
PM Z N,.92 N,.55 N
We assume that each policymaker’s individual views are structured so that HOT and NEW are
exhaustive of the concerns that motivate their bottom line judgments as to RAD, and that the
strength and direction of their bottom line judgments are connected with perfect rationality to their
judgments about HOT and NEW.
The panel must resolve two questions in reaching its decision. The first question confronts
even a single individual: what relation ought rationally to hold between her degrees of belief in the
three propositions HOT, NEW, and RAD? The second question addresses the problem of
aggregation: given that individuals have different beliefs about a given proposition or set of
propositions, how ought these differences be reconciled?
Economists and many others offer an unequivocal answer to the first question. The logic of
belief is the logic of probability. If an individual’s convictions concerning HOT and NEW rest on
independent grounds, then her degree of belief in RAD ought simply to be the product of her
degree of belief in HOT times her degree of belief in not-NEW. If we construe depth of conviction
as a judgment as to the probability of the relevant events (first: global warming absent technological
rescue, second: technological rescue) occurring, then PM X should actually believe that there is
only about a 30 per cent chance that the risk against which RAD would be deployed would
eventuate in the absence of RAD;14 PM Y would believe that there is less than one-half of one per
cent chance of that risk eventuating;15 and PM Z would evaluate the risk similarly to PM Y.16
14
.55 (HOT) * .55(~NEW)=.3025.
15
.55(HOT) * .08(~NEW)=.044.
The economic approach to depth of conviction is not uncontroversial. The practice of
fact-finding in a civil trial, for example, seems to require that someone who believes HOT with a
degree of conviction of .55, and disbelieves NEW, again with a degree of conviction of .55, should
endorse RAD; probability calculus, on the other hand, would require the rejection of RAD as it is
only supported by a probability of roughly .3. And the segmented approach to questions of fact
pursued by the civil jury has academic defenders.17 But for our present purposes, we shall assume
that the economic approach of multiplying probabilities or something very much like it would be a
rational guide to individual judgment in our RAD example.
We turn now to the problem of aggregating the varying depths of conviction across
individuals. Consider the following rough, intuitively plausible analysis.18 If we assume, in the
absence of information to the contrary, that each policymaker is as reliable as each other, and
further, give the degree of conviction with which each holds her view the same weight, then we have
good reason to reject RAD on empirical grounds. On the question of HOT, the total units of
conviction (on a scale of 1 to 100) in favor of HOT is 118 (55 + 55 + 8); and against HOT, 182
16
.08 (HOT) * .55(~NEW)=.044.
17
For example, see Brilmayer and Kornhauser, "Review: Quantitative Methods in the Law,"
46 University of Chicago Law Review 116 (1978); L. Jonathon Cohen The Probable and the
Provable; Glenn Shafer,
18
We are aware of no widely accepted approach to this question. Genest and Zidek,
“Combining Probability Distributions: A Critique and an Annotated Bibliography,” 1 Statistical Science
114-118 (1986) reviews the relevant literature. It is not clear that our intuitive approach conforms to
any of the procedures surveyed in Genest and Zidek, though it might be represented by a weighted
average approach.
(45 + 45 + 92). By the same margin of aggregated units of conviction, NEW prevails. Thus HOT
would be rejected and NEW accepted and RAD would be rejected on redundant grounds. If we
apply the same method directly to the bottom line convictions of the policymakers, RAD is rejected
by exactly the same margin ( RAD: 30 + 44 + 44 = 118; ~RAD: 70 + 56 + 56 = 118). Outcome
voting reflects the epistemic advantage of ~RAD. Even if each policymaker ignores the strength of
her judgments simply combines her judgments statically to arrive at an outcome, outcome voting
favors the rejection of RAD, by the vote of two to one (See Table 4). And if each policymaker
combines her judgments dynamically, and takes account of the probabilistic consequences of
combining her judgments the picture will be even more stark. Under these, dynamic,
circumstances, PM X will decide that while she believes HOT and disbelieves NEW, her
probabilistic confidence in the combination of these judgments is so low (.30) that she ought to
disfavor RAD; the outcome vote would then b e 3-0 against RAD, while the premise vote would
continue to favor RAD 2-1.19 Under these circumstances, accordingly, epistemic concerns would
seem to strongly favor outcome voting rather than premise voting.
Now, we could certainly cook the books in the other direction. Suppose the distribution of
confidence among the policy-makers as to their judgments ran something like this:
19
All this is put a little too crudely perhaps, since the rational community will presumably want
RAD even when there is a less than even chance of unabated global warming, if that chance is
substantial. But this simply means that the thresholds of HOT, NEW and RAD have to be redefined in
a more subtle and complex way to include a more precise statement of the costs of global warming and
RAD, and the community’s vector of risk-adverseness. This redescription does not affect the analysis
we offer here.
Table 5
Altered Convictions With Regard to RAD

PM X Y,.92 N,.92 Y
PM Y Y,.92 Y,.55 N
PM Z N,.55 N,.92 N
Under these circumstances, premise voting has considerably more epistemic appeal. Our point,
bear in mind, is not that epistemic concerns favor either premise or outcome voting in factual
judgment cases; our point is that a sweeping claim on behalf of either protocol under these
circumstances is suspect.
So far in our discussion of factual judgments by groups with the RAD example, we have
been assuming that the policymakers individual views are structured so that HOT and NEW are
exhaustive of the concerns that motivate their bottom line judgments as to RAD, and that the
strength and direction of the policymakers’ bottom line judgments are connected with perfect
rationality to their judgments about HOT and NEW. But while that assumption may hold in some
instances, there are surely others where it will not. We can imagine some circumstances – focusing
for the moment on the structure of convictions held by a single Policymaker – in which what we
have for these purposes been treating as an outcome is more firmly supported by the conviction of
a Policymaker than could be accounted for by her conviction with regard to those smaller elements
of judgment that we have described as reasons for the outcome. In the RAD case, for example,
PM Y and PM Z could be either substantially more or substantially less convinced of the bottom
line proposition that the community ultimately will evade the dire effects of global warming despite
its decision not to adopt RAD than would be justified by the simple arithmetic combination of their
confidence in their views on HOT and NEW. We can easily imagine experience-based instinct or
other variables not exhausted by HOT and NEW convincing one or both that RAD is
inappropriate, even if they could not fully defend their bottom-line convictions in terms of HOT and
NEW, and possibly even if they could not fully defend their bottom-line convictions at all.
Here, and in many if not all group judgments of fact, it is somewhat misleading to speak of
reasons and outcomes. We presented RAD as a policy proposal supported by factual judgments
bearing a fixed logic to each other. But just behind RAD, and invisible in our schematic
presentation is a bottom-line factual question: Does the community need RAD to evade disaster or
not? In this (artificially) pure case of factual judgment, it is fact all the way up, and there is no a
priori reason why little or simple factual judgments should inevitably be preferred to large or
complex ones.
Democratic concerns are similarly unhelpful to the sweeping prescription of premise-based
voting for the deliberative democratic resolution of paradoxical questions. Suppose, in our RAD
example, we imagine that the community as a whole evenly divides itself into three parties on the
RAD question, parties whose views are perfectly represented by the PM who stands in for them.
(We could, in effect, simply read "PM X" as "Members of Party X", and so forth. If the state of
empirical conviction puts more certainty on the question of RAD than then questions of HOT or
NEW, there is no fairness-related reason to make judgments on HOT and NEW govern. On the
contrary, fairness would seem to insist on RAD as the governing question. In our example, after all,
two-thirds of the members of the community are convinced that the community will evade disaster
without RAD. Their bottom line judgments are rejected and those of a mere one-third of the
community acted upon. That might be a democratically acceptable result in some circumstances,
but it seems an improbable candidate for democratic sponsorship as a general rule. To be sure,
contestability and commitment may be democratic virtues; but where the state of empirical
commitment favors the bottom line rather than its more discrete factual elements, it is the bottom
line that is the natural target of both contest and commitment.
III. GROUP DECISIONS INVOLVING JUDGMENTS OF VALUE
Judgments of value for these purposes are not merely invocations of the things persons
value; that better characterizes preferences. Rather, judgments of value implicate those things
which it is sensible to speak of a political community as having an obligation (or, possibly, being
committed) to value. Propositions of justice or political morality more generally are the most
obvious objects of such judgements; they may not be the only such objects.
The argument for reasons over outcomes in the domain of normative judgment goes
something like this: Reasons, by hypothesis, are the premises that justify outcomes; accordingly, on
views of democracy that emphasis contest over, and commitment to, those things that drive
decisions, it is reasons that must be the focus of debate and agreement. What distinguishes
normative decisions in this argument is an implicit view about judgments of value: Judgments of
value in this argument are implicitly regarded as unidirectional, with the arrow of reason and
justification moving from the normatively active material of established value to the passive,
derivative material of operational instruction.
On this view, a successful colloquy with a four year old essentially reverses the logic of
justification. She asks: Why are there traffic lights? You reply: So cars coming to a place where
two roads cross each other won't bang into each other. She asks: why don't people want cars to
bang into each other? And you reply with an explanation that is close enough to bedrock to be
normatively freestanding (or so you hope). Reasons on this account are like your last reply, and the
logic of justified choice proceeds upward from them. Reasons are justifying premises.
This seems the understanding of normative judgment upon which the linkage of integrity and
reasons depends. And, on first blush, it seems promising. But consider this unidirectional-arrow-
of-justification-picture of normative reason more closely
A. Individual normative reasons. Let us begin by focusing upon the demands of
normative choice on a individual. At the moment we meet the individual in question, she is deeply
convinced that it is unjust for the state to prevent women from obtaining abortions under reasonable
conditions. In conversation with herself or with others, however, she is pressed to justify her
conviction. Consider the rough shape of the process of reasoning involved. In particular, what is a
justifying premise for an individual who is engaged in such a process of normative reflection?
A justifying premise is a comparatively durable unit of normative judgment. In the moral

sphere, it is an appealing moral stipulation. So understood, a justifying premise could be a strong
intuitive response to a specific, morally-charged case, an appealing moral principle, or what we
might call a moral axiom -- one of a fairly small set of grounding moral principles from which other
principles can draw justification.
In one sense, these different levels of moral instinct or judgment are hierarchical: In a fully
realized moral view they can be accurately described as running from the most general and abstract
to the most narrow and particular. And in some purely abstract sense, one might be tempted to
think of the arrow of justification as running in just that direction. But this is at most a plausible view
about the logical structure of a fully realized moral view: It is emphatically not a plausible view about
the process by which moral understandings and commitments are formed by thoughtful persons
acting in good faith; nor is it a plausible view of the nature of the moral understandings and
commitments such persons will find themselves holding.
The process of moral formation -- we often call it moral reasoning, but reason is not the
only element in the process -- does not a priori privilege one level of moral commitment over
another. Reactions to specific cases, principles that collect and explain those reactions, and axioms
that collect and explain those principles, are all candidates for leadership roles in the process of
moral reflection and all candidates for rethinking and amendment in the midst of that process.
When the woman seeking to justify her conviction about laws restricting abortion considers the
matter, she is seeking a state of equilibrium between and among her views at any and potentially all
of these levels. In order to achieve this, she may have to tack back and forth between and among
these views, adjusting them where necessary. At any level, the durability of her view is determined
by its intrinsic appeal -- the native strength of its attractiveness to her -- and its connectedness --
the support it gives to other appealing conclusions and the support it derives from other appealing
conclusions.
This picture of what is sometimes described as the process of reflective equilibration is
highly schematized and idealized of course. But the point is this: In the real and imperfect world of
moral reflection, what counts as a justifying premise, as the salient unit of moral commitment, will
depend on the extant state of the relevant individual's moral commitment. It may be that after
thinking about the matter for a bit, our woman pondering the moral status of abortion laws may
decide that she does not yet have satisfactory moral principles to explain her conviction. She might
think that this gives her good reason to rethink her position; or she might be quite sure of her
position and realize that she has not yet succeeded in teasing out a fully satisfactory explanation of
her position. Even if the picture is in a certain sense worse for her in that she finds that her position
on abortion laws conflicts with moral principles to which she feels allegiance, it remains an open
question as to whether she will in the end find it necessary to modify her position on abortion or
necessary to reshape the moral principles.
B. Group Normative Premises. When we move from individuals to groups these
observations continue to hold. If integrity insists that a group openly contest and reach agreement
on the premises that justify its decisions, then the target of that requirement will be as variable as it is
in the individual case: What will be required is contest over and commitment to the most durable
normative convictions held by the members of the community.
In one respect, this is helpful to the claim that integrity insists that group voting protocols
favor reasons over outcomes when the two pull apart in paradoxical cases. One of the difficulties
faced by the claim is the problem of knowing when you've gone deeply enough in the regression
towards first principles to be able to say that you have reached a reason instead of merely an
outcome. This is not too great a problem when dealing with the decisions of multi-judge courts,
since doctrine somewhat arbitrarily designates the nature of the reasons that justify outcomes in the
cases that come before the court. Deeper reasons -- reasons for the doctrinal premises -- are
conveniently offstage. But when the structure of the doctrinal paradox is taken out of its native
environment and applied to group deliberations generally, a reason-favoring view has to contend
with the question of when you know you've reached a reason. The observation that reasons are
fixed by the shape of the convictions held among the members of the group -- that reasons are
those propositions that enjoy durable normative commitment -- helps here, since it offers a
conceptual grounds for picking out those things that count as reasons.
But this is help that a proponent of the integrity/premise-favoring thesis cannot afford to
accept. That thesis depends on the idea that when a group's judgments are distributed
paradoxically there will be normatively-charged, active components of those judgments (reasons)
that give on to normatively passives results by virtue of their arithmetic combination (outcomes).
But what in this picture are superficially identified as reasons on the one hand, and what are
superficially identified as outcomes on the other, are both contenders for the status of what is
morally most salient for purposes of agreement.
Imagine that there is a proposal on the table to change the law regarding abortion
procedures, to significantly enlarge the capacity of women to elect such procedures. The group
considering this law is equally divided among three views: One subgroup holds that abortion
involves taking the life of a person, and would maintain the present restrictive law; one subgroup
rejects that view of abortion, holds that the present law violates principles of gender equality and
would support the proposal to change the law; the remaining sub-group joins the second in
rejecting the view that abortion involves taking the life of a person, and would also support the
proposal to change the law, but its reason for doing so involves a view of autonomy rather than
equality. And imagine finally that the members of the second and third sub-groups are normatively
exclusive of each other: none of those in the equality party are attracted to the autonomy view, and
vice versa. This, of course, is a paradoxical distribution of views:

Table 6
Abortion And The Justifying Premise

Equality Autonomy Ease Restrictions
Subgroup X N N N
Subgroup Y Y N Y
Subgroup Z N Y Y
Column Outcome N N N/Y
But it is entirely possible that the members of Subgroups Y and Z are substantially more committed to
the view that it is unjust for the state to restrict the option of a woman to have an abortion than they are
committed to the specific principal upon which they would rely in justifying their view. Both would say
they are the party of choice, not the party of equality or autonomy. After full debate and vote, the
community has a reason for easing restrictions on abortion: Two-thirds of the people in the community
believe the present law to be unjust. That agreed-upon judgment is the justifying reason for changing
the law.
IV. The Structure of Group Choice
These last observations about the elusive nature of what should count as a “reason” in a reason-
driven voting protocol bring us at last to the question of the complexity of real world decision-making in
political communities. At an abstract remove from actual institutional arrangements, the champion of
reason-based voting could agree with our insistence that reasons are not necessarily the smallest
elements of judgment, but rather those premises around which commitment most durably forms. But it
is far from clear that any real-world voting process could reliably identify reasons so understood, and
far from clear what sort of voting protocol would do the best job overall of even approximating the
result-driven outcome so understood. In this section, we will lay out some of the difficulties that must
be faced in bridging the gap between an abstract attraction to reason-driven voting and the real world
of decision-making in political communities.
A. The Practical Difficulty of Disciplining Legislative Practice.
We discovered the doctrinal paradox in the course of our work on multi-judge courts. In the
milieu of judicial decision procedure, it is a relatively straight-forward matter to observe the existence of
the doctrinal paradox in real world cases, and further to consider various practical responses to the
paradox, including the option of an across-the-boards choice of issue-by-issue voting. This is so
because Anglo-American adjudication occurs within a characteristic structure. In adjudication,
doctrine creates a fixed relation between decisions about discrete sub-parts of a case (issues) and the
final decision (outcome). Consider, for example, a contract case. Plaintiff will prevail in her case if she
can prove both (a) that the defendant and she had a contract and (b) that the defendant failed to
perform. Alternatively, plaintiff will prevail on her case if she prevails on either one of two causes of
actions, say a action based on contract or an action grounded in promissory estoppel. 20 Further, the
20
For a more elaborate and complete discussion of the structure of doctrine, see Kornhauser,
“Modeling Collegial Courts II. Legal Doctrine.”
doctrinal structure of judicial decision making is fully visible by virtue of the judicial practice of writing
opinions which both announce the bottom-line outcome of the case and set forth the doctrinal
justification of that outcome -- opinions which articulately address the issues that compose a justification
for the outcome. So in a contract case in which the plaintiff prevails, the court will explain how it came
to determine both that a contract existed and that the defendant failed to perform.
In a relatively centralized decision-making environment like a multi-judge court, where reasons
are comparatively transparent and stable by virtue of extant doctrine, and the agenda relatively immune
to manipulation, reason-based voting is a practical option. We remain convinced that a sweeping
commitment to reason-based voting in paradoxical cases occurring in multi-judge courts would not be a
good thing; but such a commitment is clearly within the capacity of a multi-judge court to implement.
Legislative procedures operate in marked contrast to adjudication. Imagine a group meeting
as a committee of the whole, and proceeding by way of Robert's Rules of Procedure or an equivalent
set of operating rules.21 We can think of these rules as falling into two broad categories: framing rules
and decisional rules. Framing rules set the agenda; they determine how proposals get to the floor of
the body and whether they are amended, tabled, presented in a given order, conjoined or determined in
isolation. Decisional rules determine the voting protocol on the final question of enactment.
For our present purposes, it is nature of the framing rules that most importantly distinguishes
what we are calling legislative procedures from judicial procedures. In particular, it is the free-form,
21
We offer this example rather than a more recognizable legislature, because that introduces
the additional complications of one group deciding for another, which we take up below in Section __.
highly variable nature of the output of the framing rules that is salient. The question of whether final
votes are addressed to broad final outcomes or more narrow parts of or reasons for such outcomes,
for example, is guided by the largely arbitrary sequence of framing events within the legislative
assembly.
Thus, even if most members of a legislative assembly happen to share the belief that outcome X
is appropriate only if propositions A and B are both true, the choice to vote only on X, or on A, then B
(or for that matter, the choice of whether to abandon X after a negative vote on A) is a function of a
succession of votes guided only by the substantively blind dictates of Robert's Rules or the equivalent.
Accordingly, in legislative environments, there is normally no mechanism available to insure that reasons
or premises are revealed, much less acted upon in any formal way, and legislative procedures are
notoriously porous to the manipulation of their agendae. And it is far from obvious that legislatures in
any recognizable form could be remade to accommodate the discipline of deconstructing legislative
proposals into their component reasons and to constrain the address of formal votes to such reasons.
The practical difficulty of constructing mechanisms to impose the discipline of reason-based
voting on legislative bodies by a conceptual aspect of that project that we have already encountered:
What counts as a reason is a matter not of a linear structure of justification but rather of the depth and
durability of normative commitment. Accordingly, what counts as a reason for a group should itself be
a matter of democratic contest and commitment. It is hard to imagine how any mechanism that forced a
decomposition of bottom-line legislative outcomes into predetermined judgmental segments could be
consistent with the appropriate scope of democratic choice or with the possibility that a community’s
most durable normative commitments might at any given time be unredeemable in what might be
logically prior judgmental segments. Indeed, given the community-specific nature of what should be
understood as counting as a reason, it is far from clear that democratic concerns with contest and
commitment would be best served by segmented voting on component “reasons,” even if the means of
enforcing such voting could be devised. Free-form framing devices familiar in legislative settings – like
Roberts Rules – might do a better job overall of composing the questions over which the community
should direct its legislative contests and form its legislative commitments.
B. The Justificatory Domain of Integrity Over Reasons. There is a second wrinkle that
attaches to the idea of legislative integrity that serves to magnify the practical difficulty of implementing
reason-based voting in the legislative arena. Earlier, we noted that integrity could concern itself with the
synchronic problem of rationality across persons with regard to a single decision, or with rationality
across decisions. While we might expect that the virtue of group integrity makes demands of both
sorts, neither Phillip Pettit and Ronald Dworkin seem to consider this possibility; instead, each has hold
of half of what integrity might be understood to require. Pettit appears to be largely concerned with
group integrity over a single decision; while Dworkin focuses exclusively on Hercules’s obligation
across cases.
For our present purposes, this is the rub: As difficult as it is to imagine mechanisms by which a
legislature could maintain the discipline of reason-based voting over a single legislative decision, it is far
more difficult to imagine how this could be maintained across whole legislative programs. Further, it is
hard to see how a commitment to reason-based integrity in legislative decision making could sensibly
stop short of demanding rationality across cases.
Suppose the group in question is considering a simple legislative proposal (L) which
decomposes neatly into sub-questions (A, B) which in combination offer good reason for deciding L.
The democratic claim for reason-based voting goes something like this: the group can justify its choice
of L to an objecting member by noting that the group has engaged in active democratic contest over
substantive matters A and B, and has committed itself to both A and B, which in combination justify L.
But the logic of this account has entailments requiring a significant amount of continuity across
group decisions. Suppose there were three different pieces of legislation (L, M, and N), which
connected to reasons (A, B, and C) as follows: L= A & ~B; M= ~A & ~B; and N= A & B. Now, a
community that enacted all three pieces of legislation could not justify itself in the democratic terms that
we have just canvassed. Suppose legislation M was being complained of. Voting on reasons (setting
aside the problem of what sort of legislative mechanism could do that), the community would have had
to vote both ~A and ~B in order to have enacted M. But when the community enacted L, it would
have had to have voted in support of A; and when it enacted N it would have had to have voted in
support of B. Without continuity, reason-based voting cannot does not seem to offer the community
anything more by way of justification for its decisions than outcome-based voting. Indeed, the
community that enacted L, M & N by reason-based votes would seem to be if anything less justified in
the imposition of these legislative strictures on its members.
The logic of democratic justification that underlies reason-based legislative integrity thus has a
conceptual scope that is at least as broad as whole legislative programs. Indeed, one might argue that
consistency must extend over the legislative programs of successive legislatures. On this account,
Pettit’s position ought to parallel, in the legislative domain, the requirements of integrity across cases
that Dworkin imposes on adjudication.
There is some appeal to such a requirement. Voters elect representatives to the legislature on
the basis of the legislative programs they advocate, and often may have in mind the connection between
specific legislative programs and broad patterns of legislative choice over time. But legislatures,
whether committed politically to broad programs or not, generally proceed statute by statute,22 or even
provision by provision.23 The demand for reason-based legislative voting thus depends on the
availability and desirability of mechanisms of legislative choice that not only will sensibly fix on what
counts as the reasons for a community decision, and not only will require that legislatures vote on the
sub-units of judgment that count as reasons, but will further impose some substantial requirement of
continuity on decisions over time.24 The introduction of this last requirement makes a sweeping
22
Legislatures do feel some pressure towards enactment of legislative programs as a whole.
The Congressional budgeting procedure, for example, attempts to induce Congress to contemplate the
full legislative program that it plans to enact when it makes individual budgeting decisions. The process,
however, arose not in order to generate consistency among reasons but to force some spending
discipline on Congress.
23
Under an open rule in which any amendment may be made from the floor, Roberts Rules of
Order permit consideration of a bill first on a provision by provision basis and then subsequently as an
entirety.
24
Continuity across time presents serious problems for the reason-based theorist. Recall our
earlier example of statutes L, M, and N. Suppose that L is proposed in to Congress at time t, M to
Congress at time t+1 and N to Congress at time t+2. Suppose further that L is enacted. When
Congress considers M at time t+1 does it consider the merits of M alone? Or must it consider its
impact on L? Specifically, does the enactment of M, implicitly repeal L because it rejects the premise
A necessary for the adoption of L?
commitment to reason-based voting still less feasible and still less appealing for a democratic
community.25
VI. Groups deciding for Groups-- Legislative Integrity and the Problem of Representation.
In real-world democratic communities, courts, legislatures and administrative agencies are the
key actors, and they almost always act on behalf of a larger polity. In this section we consider how this
feature of agency bears on our prior analysis of the conflict between reason-based and outcome-based
group decision-making in general, and in particular on the case for reason-based procedures. The
particular form of agency that is relevant to this question is representation; and representation is
problematic for a reason-based approach to group decision making.
A group or an individual (the representative) can be thought to represent another group or
individual (the constituency) when one important criteria of the representative’s success is the degree to
which the representative makes those choices that the constituency would make on its on behalf under
some specified decisional circumstances. All agency relationships involve the agent acting on behalf of
the principal but there are a variety of ways in which one group or individual can act on behalf of
another. A trustee or fiduciary, for example, might be thought to be under a stringent obligation to act
on behalf of another, but this may involve doing what is best for the beneficiary of the relationship, not
what the beneficiary would do on her own behalf. In public life, however, representation is a common
25
This is reflected in Dworkin, who nominally believes that integrity applies to legislative as well
as adjudicative choices, but who excuses legislatures from any serious or visible obeisance to integrity
on grounds of democratic choice (paragraph in Law’s Empire).
motif of agency.
For a theorist of deliberative democracy, representation must play a big part in bridging the gap
between members of a political community acting as a committee of the whole in town meeting fashion
and standard legislative practice, where a small number of elected legislators make decisions on behalf
of large constituencies. This idea of the members of a political community contesting the substantive
grounds of community choice and then in turn being bound by community-wide commitments to those
grounds, for example, presumably entails a substantial responsibility on the part of legislators to
recreate or reflect the will of their constituents. Indeed, Phillip Pettit’s commitment to reasons rather
than outcomes seems in part designed to assure that voters can choose the legislators who can best be
depended upon to reflect their will.26
There is nothing surprising or disturbing about a view of the function of legislators that makes
their representative role important. But acknowledging this role brings to the fore a number of prickly
questions that are likely to wreak some havoc with a sweeping demand that legislators respond to
paradoxical cases on the basis of reasons rather than outcomes. A full analysis of these questions in
beyond our ambitions here; what follows is merely a sketch of some of the difficulties that a claim for
reason-based community choice must confront.
To organize the discussion, observe that we must consider the relation of the views of four
distinct groups: the constituency, the individual representative, the polity, and the legislature.
Notice that one’s theory of representation (and the structure of the electoral system) will determine the
26
[Cite to Pettit]
relation between a representative’s views and the (aggregated) views of her constituency. Similarly, the
structure of the legislature and the electoral system will determine in part the relation between the
(aggregated) views of the polity and the (aggregated) views of the legislature. So, for example, the
pattern of individual views in a constituency might be paradoxical though the pattern within the polity as
a whole might not be; in this circumstance, the pattern of views within the legislature may or may not be
paradoxical. Obviously, there are eight possible relations of patterns of belief among these three
groups. The 8 patterns are displayed in table 7.
Table 7: Possible Relations among the Patterns of Views within Three Different Groups
Constituency Polity Legislature
P P P
P P not-P
P not-P P
P not-P not-P
not-P P P
not-P P not-P
not-P not-P P
not-P not-P not-P
P indicates the existence of a pattern of paradoxical views in the relevant group.
. The question for the reason-based integrity theorist is: in which group or groups will the
demands of integrity apply? The answer to that question is fraught with real puzzles in some case.
The earmark of a paradoxical distribution of views, of course is that support for the component reasons
diverges from support for the outcome. To see how the common phenomenon of groups deciding for
groups complicates things for the reason-based integrity theorist, let us suppose that the legislation in
question is a law substantially reducing a particular state’s restrictions on the opportunity of a women to
secure abortion, and that when a paradoxical distribution obtains on Table 7, the distribution assumes
the form we portrayed in Table 6. That is, one third of the relevant group supports the legislation on
equality grounds; a different one third supports the legislation on autonomy grounds; and a the final one
third doesn’t support the legislation at all. So, while each of the two reasons for the legislation is
rejected by two-thirds of the relevant group, the law itself is supported by two-thirds of the same
group. And let us further suppose that when a non-paradoxical distribution obtains on Table 7, the
relevant group still supports the legislation, but the group members agreement on outcome is now
consistent with their agreement on reasons. This could be so for example if all of the sub-group who
support the legislation on autonomy grounds also support it on equality grounds, so that two-thirds of
the community now agree on the equality grounds for the legislation.
Now, suppose we consider this row from Table 7:
not-P not-P P
If integrity binds the Legislature, and the legislators accordingly take themselves to be bound to resolve
the question before them issue-by-issue, then they will reject the legislation, despite the fact that two-
thirds of the polity they represent would adopt the legislation without any ambiguity as to the grounds
for so doing.
Suppose that candidates for the position of constituent representative adopt the policy positions
that maximize each’s probability of election. Then the positions endorsed by the elected representative
will depend critically on the structure of the electoral system with single member districts in a two party
system yielding very different outcomes than a party list system within the polity as a whole. In either
circumstance, however, it is not clear that the representative will need to endorse views on all the
reasons that underlie a legislative outcome.
Consider these rows from Table 7, will all of our other hypothesized circumstances in place:

P not-P not-P
P not-P P
A representative concerned with reelection would surely be inclined to support the legislature removing
restrictions on abortions, since two-thirds of her constituents want the legislation, notwithstanding their
disagreement on reasons for the legislation. And what reason is there for her not doing so? After all,
once again, two-thirds of the polity as a whole want the law, and as a group are fully committed to one
or both reasons for the law. Were she to defy the wishes of two-thirds her constituency, and cast her
vote against the law because. her constituency as a group did not support a single reason for the law, or
on behalf of her constituency in some overly literal representative mode vote against each of the
reasons, she would not only imperil her reelection, but – were she the deciding vote – she would defeat
a law that two-thirds of the polity wanted and integrity-satisfying grounds for wanting.
VII. The Problems of Integrity – A Reprise
We have identified several formidable hurdles for a working conception of integrity. The first
of these is the need for any such theory to distinguish among and respond to the diverse types of
decisions that groups, including legislatures are called upon to make. Appropriately understood, a
group decision might reflect the aggregated preferences of the group; it might reflect the group’s factual
judgments; or it might reflect the value judgments of the group. As we have seen, the plausible claims
of integrity – particularly with regard to such nice matters as the aggregation of reasons versus
outcomes–are likely to vary substantially among these types. Preference-driven decisions are
appropriately blind to reasons; group judgments of fact seem to invite probabilistic analysis; and group
judgments of value are complicated by the non-linear nature of moral formation and conviction. A
persuasive theory of integrity will have to shape itself around these varying considerations. And that
assumes that the decisions confronting the relevant group will be pure types. Many or most group
decisions will be hybrid among these possibilities, and a theory of integrity somehow will have to absorb
the resulting pushes and pulls.
Our analysis of these pure types of decisions posed a second difficulty, at least for reason-
based conceptions of integrity. We argued that reasons and outcomes are not presented in neatly
labeled packages. In actual deliberation, our commitments to outcomes may sometimes be more basic
and fundamental than our commitment to the “principles” or “reasons” that ostensibly support them. A
process of reflective equilibrium governs our evaluative judgments and this process may point to the
outcome rather than the reason as fundamental. Moreover, commitments within a group may differ.
One individual may in fact have deeper commitments to underlying (or more abstract) principles than to
the conclusion to which these principles point; other individuals, however, may be less sure of the
theoretical grounds for their conclusion than of the conclusion itself. These features of our deliberative
process pose deep problems for any reason-based conception of integrity.
A third difficulty confronts any theory of integrity that implicates legislative – as opposed to
judicial – practice. An attractive theory of legislative integrity is almost certainly going to have as one of
its conceptual entailments the requirement that the legislature act with a degree of substantive constancy
over time – that it exhibit what we have called diachronic integrity. And synchronic integrity is likely to
require considerable constraint over the kind and sequence of questions the legislature is free to take
up. If integrity is taken to demand voting on reasons rather than outcomes, then the problem of
distinguishing reasons from outcomes will call for singularly self-conscious, self-knowing, and self-
restricting institutional mechanisms. Legislative practice in any of its familiar instantiations is free-form: it
has few if any formal mechanisms that structure the size, shape or timing of the questions that ultimately
come to be voted upon; and it has only occasional resources to provide an institutional memory with
any operational bite. Legislative integrity is thus likely to require radical transformations of legislative
practice as we know it, transformations that well may be inconsistent with the majoritarian virtues of
that practice.
A fourth difficulty for conceptions of integrity involves the complexity that ideal assumes
whenever representation enters the picture. Groups often decide on behalf of other groups and the
decision-makers are meant not only to decide on behalf of the other group but as representatives of
that group. The enterprise of group representation raises the serious question of just whose integrity
matters: The decision-making body itself? Each representative’s discrete constituency, taken one by
one? The polity as a whole? The views of the decision-making body may present a paradoxical case
even when the distribution of views of each representative’s constituency or of the population as a
whole are not paradoxical. Conversely, the distribution of views within the representative body may
not be paradoxical when the views of the population as a whole are. Where integrity touches upon
representation, it must include a theory of representation that offers guidance through this thicket of
possibilities.
And with that, we rest.

New York University, School of Law: Public Law and Legal Theory Research Paper Series Research Paper No. 68

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Public Law and Legal Theory Research Paper Series

University of Texas Law School

The Many as One:

Lewis A. Kornhauser2 and Lawrence G. Sager3

I. PARADOX AND THE LIMITS OF INTEGRITY

community that underwrites their public acts.

to its own communal acts.

outcomes that would be supported by few if any members of the community.

choice of voting protocols will be decisive to the outcome of the case.

When we encountered the phenomenon of paradoxical cases, we asked whether multi-judge

outcomes.6 {{Say a bit more}}

B. The Impossibility of Perfect Integrity in Paradoxical Cases

her essay is vital to the world in some way.

because she feels indebted to its editors, and so on.

the judgments of each of the three judges is as in table 1:

Palsgraf v. Long Island Railroad

Aggregated View of Issues Y Y Y / N

voting procedure the court adopts.

what integrity requires, perfect integrity is impossible for groups.

possible targets of the demand for integration in a simple matrix:

INTEGRITY Synchronic Diachronic

Reasons I: Synchronic, Reasons III: Diachronic, Reasons

Outcomes II: Synchronic, Outcomes IV: Diachronic, Outcomes

fits the outcomes of his court’s prior decisions.

pretermitted by Hercules’ solipsism and Dworkin’s underlying preoccupation with diachronic

integration is the doctrinal paradox and its threat to perfect integrity.10

much as a problem, perhaps, as an opportunity – an opportunity because when a group’s consensus

should matter and why.

judgment as to reasons that must matter.

a conception of diachronic, outcome-based judicial integrity; Pettit provides a conception of

synchronic, reason-based legislative integrity.

preoccupied with courts and Pettit with legislatures or their equivalent.

II. GROUPS AND REASONS

friend as an equal and in roughly maximizing their aggregate welfare.

on reasons is unproblematic from the vantage of either equity or welfare.

Or imagine that we encounter a somewhat more interesting structure of reasons. In this

view this structure of reasons schematically:

The Restaurant Case With A Paradoxical Structure of Reasons

Patricia BISTRO -- Quality BISTRO

Lisa RIBS -- Quality RIBS

Jane RIBS BISTRO Convenience BISTRO

Aggregated Reasons RIBS ? Quality RIBS / BISTRO

question that we now turn.

of the two foods: Neither is sovereign over that question.

2. Preference Aggregation And The Primacy Of Outcomes. As the restaurant example

reasons for ignoring the reasons underlying their members’ preferences.

one that ought to be pursued.

B. Group Decisions That Aggregate Judgments

evading some questions concerning the ontology of values.

1. Aggregating Judgments of Fact. Imagine that a community is considering a proposal to

among the entire scientific community, as well as the community as a whole:

Factual Judgments With Regard to RAD

paradoxically pull apart.

over the other.

Convictions With Regard to RAD

judgments about HOT and NEW.

propositions, how ought these differences be reconciled?

The economic approach to depth of conviction is not uncontroversial. The practice of

rational guide to individual judgment in our RAD example.

by exactly the same margin ( RAD: 30 + 44 + 44 = 118; ~RAD: 70 + 56 + 56 = 118). Outcome

seem to strongly favor outcome voting rather than premise voting.

Altered Convictions With Regard to RAD