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Published online by Cambridge University Press: 08 February 2017
It is widely believed that voting rights confer power to individual voters as well as to the collective body of the electorate. This paper evaluates this notion on the basis of two conceptions of political power: the causal view, according to which power equals the ability to exert causal effect, and the legal view, according to which power equals the legal ability to produce legal effect. The proposition defended is that causal conceptions of power are unable to account for the view that voting rights confer power to either individuals or collectives. In particular, the theory according to which the powers conferred by the vote equal the probability of being decisive or “pivotal” in elections does not justify the ascription of power to voters. It does not because the probability of being influential is not a valid interpretation of power as the capacity to mobilize sufficient causal effect to determine an outcome. In addition, causal conceptions of power are unable to recognize the people as the unique owner of political power. The powers exercised by the members of the electorate appear to be just one among several causes that contribute to determine electoral outcomes. In the end, the legal analysis of power proves superior. Power in a democracy is placed with the people as a legal category vested with the legal capacity to revise the legal relationship between individuals and the state.
1. Ober notes that the original Greek meaning of “demokratia” is not only that the people is the source of power, but also that it has “a collective capacity to effect change in the public realm” (Jason Ober, “The Original Meaning of ‘Democracy’: Capacity to Do Things, Not Majority Rule” Constellations 15:1 at 5).
2. Downs, Anthony, An Economic Theory of Democracy (Boston: LW Addison, 1957) at 139.Google Scholar
3. See Robert Dahl, Democracy and Its Critics (New Haven: Yale University Press, 1989) at 325; Henry Brighouse, “Egalitarianism and Equal Availability of Political Influence” (1996) 4:2 Journal of Political Philosophy 118; David Copp, “Capitalism versus Democracy: The Marketing of Votes and the Marketing of Political Power” in John Bishop, ed, Ethics and Capitalism (Toronto: University of Toronto Press, 2000) at 81.
4. Christiano, Thomas, The Constitution of Equality (Oxford: Oxford University Press, 2008) at 90.CrossRefGoogle Scholar
5. Jason Brennan, “Political liberty: Who needs it?” (2012) 29:1 Social Philosophy and Policy 1 at 3; Richard J Arneson, “The Supposed Right to a Democratic Say” in Thomas Christiano & John Christman, eds, Contemporary Debates in Political Philosophy (Oxford: Wiley Blackwell 2009) 197.
6. The view of power as essentially contested was famously spelled out by Steven Lukes in Power: A Radical View (London: Macmillan, 1974). For the view that the root meaning of power is uncontroversial, see Martin Saar, “Power” in Mark Bevir, ed, Encyclopedia of Political Theory (Thousand Oakes: Sage, 2010); Gianfranco Pasquino, “Power” in Bertrand Badie, Dirk Berg-Schlosser & Leonardo Morlino, eds, International Encyclopedia of Political Science (Thousand Oakes: Sage, 2011); Ruth Zimmerling, Influence and Power: Variations on a Messy Theme (Berlin: Springer, 2005).
7. Charles Beitz, Political Equality: An Essay in Democratic Theory (New Jersey: Princeton University Press, 1990) at 8-9. See also Niko Kolodny, “Rule Over None I: What Justifies Democracy?” (2014) 42:3 Philosophy & Public Affairs at 228. Also, Christiano, supra note 4 at 128 argues that democracy only requires that power is exercised consistent with the principle of political equality, which appears consistent with the claim that no voter is able to exercise political power.
8. Dan Felsenthal & Moché Machover, “Voting Power Measurement: A Story of Misreinvention” (2004) 25:2 Social Choice and Welfare 485.
9. Brighouse, supra note 3 at 119.
10. The terminology of power includes a variety of different and often confusing adjectives, such as social power, legal power, political power, economic power, and so on. I distinguish between adjectives that signal the attribution of power to specific contexts (e.g., social power, political power), those that serve to identify specific means for the exercise of power (e.g., economic power, military power, voting power), adjectives that refer to specific objects over which power is exercised (e.g., ideological power, coercive power, legislative power) and adjectives that specify some definitional property of the concept of power. In this paper, causal and legal power refers to distinct elements in the definition of power. Political power is in other words power, in either causal or legal terms, exercised in the political context by various means and over various objects. The focus on the vote reflects a choice to focus on a specific means for the exercise of power in the context of politics as well as the choice to focus on a specific object over which this power is exercised. Of course, none of this denies the possibility of an analysis of other means (e.g., economic) and objects (e.g., ideology) of power in politics.
11. Wesley N Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 23:1 The Yale Law Journal 16 at 44-47; HLA Hart, “Bentham on Legal Powers” (1972) 81:5 Yale LJ 799; Andrew Halpin, “The Concept of Legal Power” (1996) 16:1 Oxford J Leg Stud 129; Leif Wenar, “The Nature of Rights” (2005) 33:3 Philosophy and Public Affairs 223.
12. Carl Wellman, An Approach to Rights (Dordrecht: Kluwer Academic, 1997) at 218; Christopher Morris, “Some Questions about Rights” in Andrei Marmor, ed, Routledge Companion to Philosophy of Law (London: Routledge, 2012) 557 at 559.
13. Jeremy Waldron, Law and Disagreement (Cambridge: Cambridge University Press, 1999) at 233; Jeremy Waldron, “Votes as Powers” in Marilyn Friedman, Larry May, Kate Parsons & Jennifer Stiff, eds, Rights and Reason: Essays in Honour of Carl Wellman (Dordrecht: Springer, 2000) at 48 [Waldron, 2000].
14. Dworkin, Ronald, Freedom’s Law (Cambridge: Harvard University Press, 1999) at 27.Google Scholar
15. Kolodny, supra note 7 at 195.
16. Albert Weale, Democracy (London, Palgrave, 2007) at 19.
17. Of course, we might be more interested in who is influential than in who is powerful. For a discussion, see Stephen Lukes, “Robert Dahl on Power” (2015) 8:2 Journal of Political Power 261 at 267.
18. As noted by Berg, the people may be powerful and yet remain without influence, just as it is possible for the people to be influential and yet lack power. The former is illustrated by the people electing the parliament (being powerful) while being ignorant about available alternatives and policy agendas (not being influential). The latter is illustrated by a paternalistic elite taking into consideration the interests of disenfranchised people—thereby making them influential but not powerful. See Elias Berg, “A Note on Power and Influence” (1975) 3:2 Political Theory 216 at 222. See also the distinction between power and success in Beitz, supra note 7, and the many examples of conflations of power and influence provided by Zimmerling, supra note 6 at ch 2.
19. David Estlund, “Democracy Without Preference” (1990) 99:3 Philosophical Review 397 at 407.
20. Brighouse, supra note 3 at 120.
21. But see the contrast between statistical and communal conceptions of collective action as conditions for democracy in Ronald Dworkin, “Constitutionalism and Democracy” (1995) 3:1 European Journal of Philosophy 2 at 3.
22. Beisbart, Claus, “Voting Power and Probability” in Fara, Rudolf, ed, Voting Power and Procedures (Berlin: Springer, 2014) at 98.Google Scholar
23. Andrew Gelman, Nate Silver & Aaron Edlin, “What is the Probability Your Vote Will Make a Difference?” (2012) 50:2 Economic Inquiry 321.
24. Nor does it necessarily count as an objection to the value of voting or the rationality of getting out to vote. If the stakes are high enough, it may well be worth it. See Robert E Goodin & Ana Tanasoca, “Double Voting” (2014) 92:4 Australasian Journal of Philosophy 743 at 746.
25. Peter Morriss, Power: A Philosophical Analysis (New York: St Martin’s Press, 1987); Brian Barry, “The Uses of ‘Power’” (1988) 23:3 Government and Opposition 340.
26. Morriss, supra note 24 at 9.
27. Stephen Wall, “Democracy and Equality” (2007) 57:228 Philosophical Quarterly 416 at 421.
28. Dennis Wrong, “Some Problems in Defining Social Power” (1968) 73:6 American Journal of Sociology 673 at 679.
29. The relationship between power and various conceptions of probability is developed in Manfred Holler & Hannu Nurmi, “Measurement of Power, Probabilities, and Alternative Models of Man” (2010) 44:5 Quality & Quantity 833.
30. Alvin Goldman, “Why Citizens Should Vote: A Causal Responsibility Approach” (1999) 16:2 Social Philosophy and Policy 201 at 205; Brian Barry, “Is it Better to be Powerful or Lucky? Part I” (1980) 28:2 Political Studies 183.
31. Richard Tuck, Free Riding (Cambridge: Harvard University Press, 2008) at ch 2; Eliezer Poupko, “Reinterpreting p: A New Theory of How Individual Votes Contribute to Electoral Outcomes” (2015) 14:2 Election Law Journal 111.
32. Goldman, supra note 30, proposes “another model of causation” that is based on the assumption that each vote represents a force in a “vectorial causal system”. According to Goldman, a vote cast for the winning candidate is a “partial cause” of the outcome. How does this view account for votes exceeding the threshold for victory, votes cast on competing candidates and abstentions from the vote? One answer is that every force involved, positive or negative, is part of the causal explanation and should therefore be considered a partial cause. Kolodny, supra note 7 at 200 seemingly to endorses this view. According to Kolodny, a vote is affecting the outcome by “contributory influence”, where each vote “combines with other vectors to determine a result”. But Goldman denies this; neither abstentions nor votes cast for other candidates are partial causes for the victory. As far as I can see, the only remaining interpretation is that each vote for the winning candidate is a partial cause by having a probability of being part of the least effective set that produced the outcome—i.e., the threshold view.
33. Philip Pettit, “Three Conceptions of Democratic Control” (2008) 15:1 Constellations 46.
34. For an overview, see Norris, Pippa, Electoral Engineering: Voting Rules and Political Behavior (Cambridge: Cambridge University Press, 2004).CrossRefGoogle Scholar
35. Brian Barry, “Capitalist Rule ok? Some Puzzles About Power” (2002) 1:2 Philosophy, Politics & Economics 155 at 172. These considerations may support the conclusion that power is unlikely to lend itself to a purely causal interpretation at all. As noted by Lukes, supra note 17 at 262, if power is just causal power, then “I am powerful if I cause an accident that harms you, or if I lose a bet that makes you rich or if, because I bought the last ticket, you fail to see a movie”.
36. The confluence of causes explaining electoral outcomes is why Dworkin’s rejects “equality of influence” as a viable democratic ideal. See Dworkin, supra note 14 and 20.
37. George Rainbolt, “Rights as Normative Constraints on Others” (1993) 53:1 Philosophy and Phenomenological Research 93 at 103.
38. Wellman, supra note 12 at 91.
39. In his seminal article on the concept of power, Dahl identified the capacity of the policeman to direct the traffic as the “bedrock idea of power”. Evidently, Dahl did not consider legal power as an alternative in this context. See Robert Dahl, “The Concept of Power” (1957) 2:3 Behavioural Science 201 at 202.
40. Hohfeld, supra note 11 at 44, 55.
41. Wenar, supra note 11.
42. Halpin, supra note 11 at 131.
43. Hart, supra note 11 at 807. The distinction represents Bentham’s “greatest insight” according to Hart.
44. Waldron, 2000, supra note 13 at 56 finds it misleading to say that the electorate holds legal power because he does not believe in the existence of collective moral agents. But the notion of collective rights is not premised on the existence of collective agents with the ability for moral responsibility or agency.
45. Ibid at 56.
46. Ibid.
47. Ibid.
48. Ibid at 48.
49. Herbert Tingsten, Vår egen tids historia 1, Demokratiens seger och kris: den författningspolitiska utvecklingen 1880-1930 (Stockholm: Bonnier 1933) at 33.
50. Norberto Bobbio, “Kelsen and Legal Power” in Stanley Paulson & Bonnie Litschewski Paulson, eds, Normativity and Norms: Critical Perspectives on Kelsenian Themes (Oxford: Oxford University Press, 1998) 435 at 437. Hans Kelsen provides the classic and most influential analysis of the legal relationship and between citizens and the state. Accordingly, he explains the right to vote as the “legal possibility of participation in the creation of or execution if the legal norms”. Hans Kelsen, General Theory of Law and State (Cambridge: Harvard University Press, 1945) at 235. Despite the fact that the work of Kelsen is the genesis of the legal conception of the state, his theory does not allow for legal power. To Kelsen, legal norms impose legal duties, leaving no place for legal norms that confer power. For a convincing criticism of Kelsen, see Hart, supra note 11 at 801 and Joseph Raz, The Concept of a Legal System (Oxford: Clarendon Press, 1970). For all their differences, Kelsen, Hart and Raz share a “normative”, “legal” or “institutionalized” account of power as explained by Zimmerling, supra note 6 at ch 4.
