<DIV>More on all this later, but if BM's only substantive addition to procedural correctness is  civil liberties protections, his "middle way" is the constitutional liberal democracy espoused by Rawls and me. And indeed by the US S.Ct.: people should look up again that footnate 4 to <EM>US v. Carolene Products</EM> that I posted earlier in this discussion, treated subsequently by the courts as providing a legal basis for heightened scrutiny for laws that hurt "discrete and insular minorities." </DIV> <DIV> </DIV> <DIV>And I want to emphasize that this <EM>is</EM> a form of procedural correctness --the point (underlined by John Hart Ely in his book Democracy and Distrust) is that domination, understood as you define it, upsets the conditions for democratic deliberation and harms procedural correctness.</DIV> <DIV> </DIV> <DIV>However, civil liberties and civil rights protections are flexible and subject to interpretation. And under pressure they tend to give. Think of <EM>US v. Debs</EM> and the Smith Act, or the Patriot Act today. They are a lot better than nothing, but nothing will guarantee that the mob will not come for the gays or the commies or the Muslims or whoever happens to be in disfavor this month. You know that, of course.</DIV> <DIV> </DIV> <DIV>The problem with your Buddhist or utilitarian pain-reducing idea, incidentally, is that not everyone agrees that reducing pain is a good thing, and the question even among those who do is what is the proper distribution.  As for the first, the right thinks that welfare moms, criminals, poor people, pregnant women who don't want the babies, and unbelievers <EM>deserve </EM>to suffer. You disagree, but how does one adjudicate this dispute? </DIV> <DIV> </DIV> <DIV>As for the second, I am not a Buddhist or a utilitarian, and I don't think that reducing overall pain is always right. I think that it's just that war criminals, unusually vicious exploiters, crooks who steal from the public trough, and indeed violent hoodlums be made to suffer pain (in some cases death -- I am not a death penalty abolitionist, except situationally) whether or not it deters anyone from misbehavior and even if it increases the overall amount of pain in the world. So again, how do you decide, except by a fair procedure, what to do?</DIV> <DIV> </DIV> <DIV>I don't want to go on about the Fugitive Slave Acts, but two points: (1) no society is ever likely to be ideally democratic. Do we want to say that if a society isn't perfect then its laws have no force other than the fact taht you will be put in jail or made to pay money if you violate them? (2) Surely we can tell the difference between the antebellum US, with its highly imperfect and limited democracy, and Nazi Germany. Those were not equivalent regimes, for all the limitations of American democracy in those days. (Or ours.) </DIV> <DIV> </DIV> <DIV>The important point here is that the binding force of proicedurally correct law is a matter of degree. Our laws have more such force than those of antebellum America because our procedures (including protections for minorities) are better. The laws of the Nazis had no force whatsoever except the laws that happened to coincide with independent demands of morality or social cooperation. (Like everyone driving on one side of the road.) </DIV> <DIV> </DIV> <DIV>jks<BR><BR><B><I>BklynMagus <magcomm@ix.netcom.com></I></B> wrote:</DIV> <BLOCKQUOTE class=replbq style="PADDING-LEFT: 5px; MARGIN-LEFT: 5px; BORDER-LEFT: #1010ff 2px solid">Dear List:<BR><BR>jks wrote:<BR><BR>> Sorry if I came across as touchy. But it's very important to realize that<BR>the fact that guarantees can fail is just part of the way the world is. Yes,<BR>proper procedure can lead to terrible results. I have a paper (as yet<BR>unpublished) on this very point. That doesn't mean we have a better<BR>alternative.<BR><BR>I understand. Somehow proper procedure strikes me as woefully inadequate.<BR><BR>> It is pretty wishy-washy and tepid. It's designed to be lowest common<BR>denominator. It's also pretty useless, except the alternative is tyranny or<BR>civil war.<BR><BR>But are those the only alternatives? Tepid proceduralism or tyranny? As a<BR>Buddhist I try to seek the middle path.<BR><BR>> Only if you are willing to impose the Correct View by brute force.<BR><BR>But wouldn't it be sensible to create a framework that would measure the concrete,<BR>empirical effects different views have when put into practice? Your approach seems<BR>an abdication of responsibility. So long as you follow procedure, everything is<BR>permitted. <BR><BR>> I don't pretend my answer is easy to take. There is a case to be made that as<BR>horrible and immoral as the FSA were, they were legally binding because they<BR>were enacted by a reasonably fair procedure in a society that was as<BR>democratic as any you could find in those days -- and the Nazi laws banning<BR>racial intermarriage and the like were not because they were enacted by a<BR>repressive tyranny.<BR><BR>I don't buy it. FSA were not legally binding since the government that passed<BR>them was not democratic ("as democratic as any you could find" does not equal<BR>"democratic." Gosh, I wish my new leftist dictionary would come!). There was<BR>nothing reasonable or fair about laws passed by white, property-owning<BR>males which turned African peoples into property. the consequences of these laws<BR>was punitive and persecutory.<BR><BR>> I can hear the squawks about the undemocratic nature of antebellum<BR>society, but that is just an example.<BR><BR>I just added another above to chorus. LOL <BR><BR>> If homophobic laws are enacted by our society, I accept them as legally binding.<BR><BR>But do you think a fair and reasonable process allows a majority to impose punitive<BR>laws on a minority? I don't think so. That is just majoritarian mob rule. <BR><BR>> That does not mean that we should not try to change them, or that civil disobedience<BR>to them is wrong.<BR><BR>> What if queers are persecuted. That's bad. But there is no alternative to procedural<BR>correctness except the imposition of a favored view by force or deception, and that<BR>doesn't distinguish between which views are favored.<BR><BR>But you can distinguish between which views, when enacted cause suffering and<BR>which do not. That can be measured empirically. You seem to be too focused on<BR>theory and process and not paying enough attention to outcome and consequences.<BR>That is what Republicans do -- the process isn;t racist so it doesn't matter that Blacks<BR>actually suffer discrimination -- the process was fair. <BR><BR>> I don't know what you mean by these terms. Maybe if you filled them out<BR>some, we might agree that non-domination, whatever that is, is necessary for<BR>procedural correctness.<BR><BR>To me non-domination consists in not allowing majorities to persecute minorities.<BR>In the case of same-sex marriage, the decisions about queer rights are being<BR>made by non-queers. Is that fair? Is that reasonable? Same-sex marriage<BR>has no effect on the lives of non-queers, and yet they are the ones who get<BR>to determine its legality. That is domination. <BR><BR>> But if by non-intereference you mean that Rawls is some sort of libertarian<BR>who thinks that people should be allowed to impose their prejudices on on others<BR>in a private context, that is not right.<BR><BR>No, I mean the liberal substitution of non-interference (from which libertarianism<BR>can be derived) for non-domination (as outlined above). Rawls' weak sister<BR>approach to fairness and justice translates into <BR><BR>> What would you add?<BR><BR>Protections so that majoritarian mob rule could not be exercised over minorities.<BR><BR><BR>___________________________________<BR>http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk<BR></BLOCKQUOTE><p> <hr size=1>Do you Yahoo!?<br> <a href="http://us.rd.yahoo.com/mail_us/taglines/aac/*http://promotions.yahoo.com/new_mail/static/ease.html">Yahoo! Mail Address AutoComplete</a> - You start. We finish.