Theories of Nondomination and Justice

IN A RECENT INTERVIEW with Cosmopolitan, Democratic front-runner Hillary Clinton fielded a deceptively simple question. When a man and a woman are on a date, who should pick up the check? Clinton avoided offering a hard-and-fast rule, saying that the answer depended deeply on context. “I think splitting the cost on a date has to be evaluated on a kind of case-by-case basis,” she said. As Vox noticed, that’s the kind of answer Clinton often gives, whether the question is about college tuition, health care, or foreign policy.

It’s also the kind of context-sensitive, nuanced-almost-to-a-fault answer that Yale political theorist Ian Shapiro offers in his new book, Politics against Domination, although he doesn’t weigh in on check-splitting. Instead, the book is about the design of domestic political institutions and foreign policy. Unlike radical democrats like Paul Cartledge, Shapiro’s answer is modest, but, as he reminds us, even a modest amount of democracy is better than none.

Among contemporary political theorists, Shapiro, the director of Yale’s MacMillan Center for International and Area Studies, is well known for his powerful combination of analytic philosophy, descriptive political science, and polemics. (He tips his hat to the late political theorist Brian Barry as an exemplar here.) In the past, his work has ranged beyond narrow disciplinary confines. He co-authored Pathologies of Rational Choice Theory, which blistered the then-dominant trend among political scientists for tinkering with models instead of engaging in what he called “problem-driven research,” that engaged with the broader world. His (again co-authored) Death by a Thousand Cuts: The Fight over Taxing Inherited Wealth, offered an empirical investigation on the Congressional Republican repeal of the estate tax in 2001 that, through interviews on Capitol Hill, functioned as much as a piece of journalism as scholarship.

But despite a wide range of work, Shapiro had previously left to one side questions that seem politically fundamental on the structure of domestic institutions like legislatures and executives, and of the the relationship between states, in favor of those centered on civil society, like businesses, families, and classrooms. Now, he delivers on his long-outstanding promise to discuss the issue, to which he appends — somewhat uneasily — several chapters on foreign policy.

Shapiro advances an account of justice he calls “nondomination,” which he more explicitly formulated in his central theoretical work, Democratic Justice. Nondomination, his normative central insight, draws on the work of Michel Foucault, Jürgen Habermas, Iris Marion Young, Michael Walzer, Quentin Skinner, and Philip Pettit. Roughly, it runs like this: Domination is a particular and illicit — but alterable — compromise of a person’s freedom by another agent or structure which threatens that person’s most important interests. Democratic governments and their citizens work best when they regularly engage in projects that ameliorate specific injustices — without particular commitments to what a society cleansed of injustice would look like. No recipes for the kitchens of the future, in other words. The goal of nondomination is to democratize the power relations operating within acts of injustice while interfering with them as minimally as possible. Democracy is a subordinate good, in contrast to the superordinate good toward which a civil institution works.

That account fails to extend to political institutions, since they are shot through entirely with power relations — the state has no other purpose — and resist low-cost exits by victims of domination. So what to do?

For a fan of modern democracies, he finds plenty at fault in modern democratic polities like the United States. Democratically enacted constitutions can be legitimate, but ought not to limit subsequent majority decisions. The separation of power favored by republicans erect nothing more than a “parchment barrier” to tyranny. Independent supreme courts would be admirable were they headed by an Earl Warren, but not when run by a Roger B. Taney. Bicameral legislative bodies that include a senate offer more chances for obstruction than deliberation. The push for an independent central bank in the 1990s and early 2000s “was propelled by what we now know to have been vastly overblown self-confidence.” As Shapiro argues, it’s easy to recognize what you don’t like.

Figuring out what you do like can be harder. Shapiro is, in the first and last analysis, a majoritarian, with a preferred form of government closest to the Westminster model: single-member plurality districts in which politicians, acting according to the responsible party thesis, carry out promises while in power and present alternatives to the voters while out of it, and alternate in governments while the regime remains consistent. In this, Shapiro agrees with the 20th-century pluralists who systematized President James Madison’s insight that “institutional instability” can mitigate the peril of factions; this notion makes up much of the paradigmatic core of the political science developed during the Cold War, and the transitions to democracy that followed. In defense of this position, he adduces a letter that the fourth president wrote in 1833 — at the end of his long career in politics — in which Madison revised his position on some of the institutional framework for which he had argued in The Federalist Papers. Those who disagree with majoritarian politics, he wrote, “must either join the avowed disciples of aristocracy, oligarchy, or monarchy, or look for a Utopia exhibiting a perfect homogeneousness of interests, opinions, and feelings nowhere yet found in civilized communities.”

But what relationship should those in self-proclaimed “civilized communities” have with those in other parts of the world? It’s not entirely clear whether Shapiro would endorse Madison’s entrance into the Napoleonic conflict during the War of 1812 — although a liberal on domestic policy, on foreign affairs, Shapiro counsels a version of the green-eye-shade realism that guided President George H. W. Bush during the First Gulf War, one that he argues later incumbents, including George W. Bush and Barack Obama, failed to live up to. “One should do what is needed,” he writes, “but only what is needed to stop the bully.” Building on his work in his previous book, Containment, he argues that the American wars in Afghanistan and Iraq, as well as the interventions in Libya and against ISIS, fails his test — their ambitions too vast, and consequences too dire.

Although states ought to tread lightly in the international arena, Shapiro endorses a robust civil society that operates transnationally, though he rejects arguments in favor of a global state. He cites the movement against the slave trade in the United Kingdom during the 18th and 19th centuries as a model of effective action against domination across national borders. Those both in and out of government combined moral condemnation of slavery with tactical victories like the elimination of the Atlantic slave trade in 1807, the abolition of slavery across the empire in 1833, and foreign pressure that contributed to the end of slavery in Brazil in 1850, the United States in 1865, and Cuba in 1886. Of the decades-long campaign, he writes that it was a “realistically utopian venture,” which he compares to present efforts to enact a global minimum wage.

Shapiro’s insights are trenchant, especially with regards to the Citizens United decision, and his counsel on how the “status-quo bias” in national political institutions favors the privileged. After more than a decade of imperial overreach, his restrained account of foreign policy should likewise find support.

However, in a book that ranges over a wide variety of topics in a short number of pages, there are moments where his arguments fall flat. Perhaps the most surprising of these is his failure to engage with the findings of his empirical colleagues. He endorses an independent redistricting committee that would take the power to draw Congressional districts out of the hands of elected officials, claiming it would “mitigate the anomaly whereby national elections are contested in only a small number of constituencies.” In California, that proposal was put to the test in 2008, following the passage of Proposition 11. Prior to the first election under the new rules by which Congressional districts were drawn by the independent committee, Democrats held 34 of the state’s 53 seats in the House — 64 percent of the total — despite winning 54 percent of the aggregate votes cast in the state. Under the new boundaries, they won 38 seats — 72 percent — while winning 61 percent of aggregate votes. Complicating the case, that election also featured top-two primaries; anecdotally these returns, in which Democratic electoral rates consistently ran about 10 percentage points ahead of their aggregate vote share, support Abramowitz, Alexander, and Gunning’s contention that noncompetitive elections have “not been caused by redistricting.” Instead, partisan polarization among the electorate and incumbency seem to be driving noncompetitive elections. That’s a fancy way of saying that no commission in the land could draw a district in which a Republican candidate had a chance of competing with Berkeley Congresswoman Barbara Lee. Gerrymandering matters — it may have accounted for an extra 18 Republican seats in the House in 2012 — but it may not matter as much as Shapiro thinks it does.

One could raise similar quibbles at other various points of the argument (events on the ground may nullify his view that restraint was the best course during Russia’s invasion of Ukraine, for example). To its credit, Shapiro’s project, however, is built to adaptively take into account such shifts. Other than his commitment to nondomination, he allows little to harden into dogma.

There’s a deeper problem at work in the book, however, one for which a solution is unclear. How should citizens in states that fail to instantiate the most effective democratic institutions — but nevertheless are democracies — weigh their obligation to reform the state against their obligation to redress specific injustices? Do they have an obligation to change these institutions? It seems hard to believe that a person living under a bicameral, instead of a unicameral, legislature is a victim of domination; given the constitutional difficulty in reforming the legislative branch, how much moral bang for the practical buck pays off by making not-completely-terrible democracies into marginally better ones? Would the anti-slavery campaigners in the 19th century have freed slaves more efficiently had they focused on reforming the British parliamentary system instead of working directly against slavery? As Jacob Hacker and Paul Pierson have shown, a Senate that overrepresents rural Republicans makes enacting a liberal priority like single-payer healthcare harder, but enacting single-payer health care is still easier than abolishing the Senate.

It’s here that one runs up against the limits of Shapiro’s framework. Would a theory of politics as nondomination be better served by focusing less on institutional design than on problematizing the status of the agent? Following his more adventurous colleagues in political theory like Will Kymlicka, who argues for the inclusion of nonhuman animals in politics, and Jane Bennett, who widens the scope even further to include materiality itself in the political system, it seems as if a fruitful extension of the theory would be to relax its premise that the subjects of domination must be humans. In addition to the possibilities such a shift would open up for political action on issues like climate change, it would also entail a subordinate intellectual good: to push beyond the Cold War defense of liberalism that much of political science thinking on democracy still retains to an engagement with contemporary politics.

A theory of politics as cogent as Shapiro’s reaches its most interesting conclusions the further it travels from the stereotypical halls of power — indicative, perhaps, of the ideological exhaustion that defines our era for many citizens of Western states. It is for that reason — among many others — that his promise of a forthcoming book that will apply the logic of nondomination to questions of economic distribution is so tantalizing. After which, one hopes, he will finally answer the question of splitting the check on a date with a firm and clear “it depends.”

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Scott A. Lucas has worked as an editor for San Francisco magazine and the Las Vegas Sun and has an MA in political science from the University of California, San Diego.