¹ These three characteristics may be seen as informal statements of criteria defining the moral point of view, or the formal conditions of right. See Baier, Kurt, The Moral Point of View (Ithaca: Cornell University Press, 1958), pp. 187–213Google Scholar; and Rawls, John, A Theory of Justice (Cambridge: Harvard University Press, 1971), pp. 130–36.Google Scholar

² Our use of the standard of reasonable rejection owes most to Scanlon, T. M., “Contractualism and Utilitarianism,” in Utilitarianism and Beyond, ed. Sen, Amartya and Williams, Bernard (Cambridge: Cambridge University Press, 1982), pp. 103–28.CrossRefGoogle Scholar

³ Once the classic example of a people with an amoral if not immoral culture, the Ick, anthropologists now think, were unfairly maligned; they seem to be morally no worse in attitude and behavior than most cultures. See Edgerton, Robert, Sick Societies: Challenging the Myth of Primitive Harmony (New York: Free Press, 1992), pp. 6–8.Google Scholar

⁴ Hobbes, Thomas, Leviathan, ed. Oakeshott, Michael (New York: Macmillan, 1962), ch. 4, pp. 39–40.Google Scholar

⁵ It is no longer plausible to claim as a matter of historical fact that “all moral theories have hitherto been the product of the economic conditions of society obtaining at the time.…[M]orality has always been class morality; it has (usually) justified the domination and the interest of the ruling class…” (Engels, Friedrich, “On Morality,” in The Marx-Engels Reader, 2d ed., ed. Tucker, Robert C. [New York: Norton, 1978], p. 726)Google Scholar. One can, however, make these claims true by definition. The economic conditions of a society, for example, are an important part of what causally produces moral theorists and influences their consciousness, and therefore moral theories are, in this weak sense, the product of the economic conditions of society obtaining at any particular time.

⁶ Hume, David, A Treatise of Human Nature, 2d ed., ed. Selby-Bigge, L. A. (Oxford: Clarendon Press, 1978), Book III, part II, section ii, pp. 484–501.Google Scholar

⁷ Although Hume suggests that extreme scarcity would eliminate moral conflict, we should consider both moderate and extreme scarcity as sources of moral conflict. Extreme scarcity need not render disputes over justice beside the point. See Clayton, D. Hubin's discussion in “The Scope of Justice,” Philosophy & Public Affairs, vol. 9, no. 1 (Fall 1979), p. 18.Google Scholar

⁸ Although a society where people utterly lack generosity and fellow-feeling would be a strange society indeed, moral conflicts can also arise among complete egoists. Suppose that some of the egoists “work hard to create valuable objects from the moderate store of raw materials that nature provides.” Genuine moral conflicts may break out among these ruffians, each of whom argues for his or her fair share. Even if they argue from self-interested motives, their arguments nonetheless can have genuine moral content. See Hubin, , “The Scope of Justice,” p. 10.Google Scholar

⁹ Philosophers who have developed versions of this view in recent years include Berlin, Isaiah, “Two Concepts of Liberty,” in Four Essays on Liberty (Oxford: Oxford University Press, 1969), pp. 118–72Google Scholar; Nagel, Thomas, Mortal Questions (Cambridge: Cambridge University Press, 1979), pp. 128–41Google Scholar; Williams, Bernard, “Ethical Consistency,” in Problems of the Self (Cambridge: Cambridge University Press, 1973), pp. 166–86CrossRefGoogle Scholar; and Walzer, Michael, “Political Action: The Problem of Dirty Hands,” Philosophy & Public Affairs, vol, 2 (Winter 1973), pp. 160–80Google Scholar. For a sample of views on both sides, see Gowan, Christopher, ed., Moral Dilemmas (Oxford: Oxford University Press, 1987).Google Scholar

¹⁰ We do not attempt to argue for any general moral foundations for democracy here; we take it for granted that at least one of the moral justifications for democracy that political theorists have presented establishes its superiority over nondemocracy. Our focus is on the comparative moral merits of different conceptions of democracy, and on only one aspect of that question: their comparative capacities for addressing moral conflict. Some discussions of the general justification of democracy that we have found helpful include Dahl, Robert A., Democracy and Its Critics (New Haven: Yale University Press, 1989)Google Scholar; Held, David, Models of Democracy (Stanford: Stanford University Press, 1987)Google Scholar; Lively, Jack, Democracy (New York: St. Martin's Press, 1975)Google Scholar; Nelson, William, Justifying Democracy (London: Routledge and Kegan Paul, 1980)Google Scholar; and Pennock, J. Roland, Democratic Political Theory (Princeton: Princeton University Press, 1979)Google Scholar. We also rely on our own earlier discussions of this topic: Gutmann, Amy, Liberal Equality (Cambridge: Cambridge University Press, 1980)Google Scholar; Thompson, Dennis, The Democratic Citizen (Cambridge: Cambridge University Press, 1970)Google Scholar; and Thompson, , John Stuart Mill and Representative Government (Princeton: Princeton University Press, 1976).Google Scholar

¹¹ We take Robert Dahl as a paradigmatic procedural democrat, in part because his subtle form of proceduralism recognizes that “the democratic process is… itself a rich bundle of substantive goods” (Democracy and Its Critics, p. 175)Google Scholar. Other proceduralists who specifically defend majority rule include Spitz, Elaine, Majority Rule (Chatham, NJ: Chatham House, 1984)Google Scholar; and Rae, Douglas, “Decision Rules and Individual Values in Constitutional Choice,” American Political Science Review, vol. 63 (1969), pp. 40–56CrossRefGoogle Scholar. More generally, the pluralist tradition in American political science, beginning most notably with the work of David Truman, provides numerous examples of proceduralism.

¹² An assumption of political equality seems to lie behind Locke's defense of majority rule in the Second Treatise, ch. 8, section 96, in Locke, John, Two Treatises of Government, ed. Laslett, Peter (New York: New American Library, 1965), p. 375.Google Scholar

¹³ A prominent example is Ely, John Hart, Democracy and Distrust (Cambridge: Harvard University Press, 1981).Google Scholar

¹⁴ For critiques of procedural democrats such as Ely, see Cass Sunstein, R., The Partial Constitution (Cambridge: Harvard University Press, 1993), esp. pp. 143–45Google Scholar; Waldron, Jeremy, “A Right-based Critique of Constitutional Rights”Google Scholar (unpublished manuscript); and Dworkin, Ronald, A Matter of Principle (Cambridge: Harvard University Press, 1985), pp. 57–65.Google Scholar

¹⁵ Barry, Brian, “Is Democracy Special?” in Democracy and Power, Essays in Political Theory I (Oxford: Clarendon Press, 1991), p. 29Google Scholar, citing his early discussion in Barry, , Political Argument (London: Routledge and Kegan Paul, 1965), p. 312.Google Scholar

¹⁶ Barry, , “Is Democracy Special?” p. 30.Google Scholar

¹⁷ Ibid., p. 30.

¹⁸ Two other features of the railway-car example, and other cases in which majority rule seems the right solution, are worth noting not only because they are important in technical discussions but also because they are so rarely satisfied in real political circumstances. In such cases: (1) only one question is the subject of decision; and (2) the question offers only two, dichotomous alternatives (such as “smoking” or “no smoking”). When there are multiple decisions to be made or more than two alternatives (“smoking,” “no smoking,” “smoking at certain times only”), as there almost always are in political life, then there are also likely to be procedures other than simple majority rule that are reasonable ways of resolving the controversies. Plurality rule, for example, may be a reasonable way of resolving disagreements with more than two alternatives. See Barry, , “Is Democracy Special?”Google Scholar

¹⁹ In his opinion for the Supreme Court in United States v. Caroline Products Co., 304 U.S. 144,152–53 n. 4 (1938)Google Scholar, Justice Harian Stone wrote that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and… may call for a correspondingly more searching judicial inquiry.”

²⁰ Barry, , “Is Democracy Special?” p. 37.Google Scholar

²¹ Ibid., p. 38.

²² Dahl, , Democracy and Its Critics, p. 167Google Scholar. Stuart Hampshire, who in his most recent writings is a thoroughgoing proceduralist, may disagree, but he also may not think that democracy is necessary to justice; see Hampshire, , Innocence and Experience (Cambridge: Harvard University Press, 1989)Google Scholar. He argues for the need for procedural justice, but never claims that the procedures must be democratic to be just.

²³ Dahl, , Democracy and Its Critics, p. 162.Google Scholar

²⁴ See Riker, William, Liberalism against Populism (San Francisco: W. H. Freeman and Co., 1982)Google Scholar; and Arrow, Kenneth, Social Choice and Individual Values, 2d ed. (New York: Wiley, 1963).Google Scholar

²⁵ David Miller discusses how deliberation can overcome the potential arbitrariness in democratic decision making that is revealed by social choice theorists, in Miller, , “Social Choice and Deliberative Democracy,” Political Studies, vol. 40 (1992), pp. 60–63.CrossRefGoogle Scholar

²⁶ Dahl, , Democracy and Its Critics, p. 167.Google Scholar

²⁷ Ibid.

²⁸ We take John Rawls as the paradigmatic constitutional democrat; although obviously others have written more extensively about the legal and judicial basis for such a vieiv, Rawls provides the most sophisticated and cogent defense of the rationale for constitutionalism. Furthermore, we find so much of his theory compelling that it is important for us to try to distinguish our own view from his. Other constitutional democrats we have found helpful include Tribe, Laurence, American Constitutional Law (Minelo, NY: Foundation Press, 1978)Google Scholar; Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press, 1977)Google Scholar; Dworkin, , A Matter of PrincipleGoogle Scholar; and Dworkin, , Law's Empire (Cambridge: Harvard University Press, 1986).Google Scholar

²⁹ Rawls, , A Theory of Justice, p. 356.Google Scholar

³⁰ Rawls, John, Political Liberalism (New York: Columbia University Press, 1993), p. 291.Google Scholar

³¹ Ibid.

³² Ibid., p. 229.

³³ Ibid., p. 230.

³⁴ Ibid.

³⁵ Rawls, , A Theory of Justice, p. 234.Google Scholar

³⁶ The process we describe is a simplified version of the constitutional and legislative stages of the rarely discussed “four-stage sequence” in A Theory of Justice, pp. 195–201Google Scholar. The scheme, as Rawls outlines it, is intricate and elusive. We are less concerned with its details than with the general strategy of resolving specific moral conflicts that it represents.

³⁷ Rawls, , A Theory of Justice, p. 201.Google Scholar

³⁸ See, e.g., Dworkin, , A Matter of Principle, pp. 9–71Google Scholar, and Law's Empire, pp. 355–99.Google Scholar

³⁹ Harris v. Macrae, 448 U.S. 297 (1980).Google Scholar

⁴⁰ Bargaining among interests may be a morally appropriate way to resolve some political issues, where only competing interests are at stake and where resolving their differences should be primarily a matter of negotiation, but deliberation typically will be necessary to figure out when such bargaining is justified, and when it is not.

⁴¹ For other discussions of the basis of deliberative democracy, see Cohen, Joshua, “Deliberation and Democratic Legitimacy,” in The Good Polity: Normative Analysis of the State, ed. Hamlin, Alan and Pettit, Philip (Oxford: Basil Blackwell, 1989), pp. 17–34Google Scholar; Fishkin, James, Democracy and Deliberation (New Haven: Yale University Press, 1971)Google Scholar; Larmore, Charles, Patterns of Moral Complexity (Cambridge: Cambridge University Press, 1987), esp. pp. 59–66CrossRefGoogle Scholar; Manin, Bernard, “On Legitimacy and Political Deliberation,” Political Theory, vol. 15 (08 1987), pp. 338–68CrossRefGoogle Scholar; Mansbridge, Jane, “Motivating Deliberation in Congress,” in Constitutionalism in America, vol. 2, ed. Baumgartner, Sarah (New York: University Press of America, 1988), pp. 59–86Google Scholar; Sunstein, Cass, The Partial Constitution (Cambridge: Harvard University Press, 1993), pp. 133–45Google Scholar; and Thompson, , The Democratic Citizen, ch. 4, pp. 86–119.Google Scholar

⁴² Mill, John Stuart, Considerations on Representative Government, in Collected Writings, vol. 19, ed. Robson, J. M. (Toronto: University of Toronto Press; London: Routledge and Kegan Paul, 1977), ch. 3, p. 68Google Scholar. For discussion of empirical evidence that supports Mill, see Thompson, , John Stuart Mill and Representative Government, pp. 38–43, 49–53.Google Scholar

⁴³ For a defense of teaching deliberation and an examination of some of its institutional implications, see Gutmann, Amy, Democratic Education (Princeton: Princeton University Press, 1987), pp. 50–52 and passim.Google Scholar