New York University Public Law and Legal Theory Working Papers

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In recent work, Ronald Dworkin has used a simple hypothetical to discredit the principle of majority decision. He imagines a lifeboat, overloaded, in which one passenger must be chosen to be thrown overboard in order to save the rest. Dworkin says that 'it would not be fair to hold a vote so that the least popular among them, for whatever reason, would be drowned. It would obviously be fairer to draw lots.' He thinks this shows that the principle of majority decision is not intrinsically fair and that it adds nothing to the legitimacy of a decision. He concludes from this that a definition of democracy which ties it tightly to majority-decision is misconceived. In this paper, I argue that Dworkin's example shows very little, and certainly not that. Majoritarians favor the use of the majority principle to decide general policy and legislation, not life and detah for partiuclar cases. If the passengers in the lifeboat disagreed about the principle to use to decide who should go overboard - some favoring decision by lot, some favoring the sacrifice of those who are so weakened they will die anyway - it would not be unfair or inappropriate to use majority-decision to determine that issue of principle. Dworkin makes no convincing argument against this, and his use of the lifeboat example fails to touch any of the moral considerations that democrats have thought made majority-decision attractive. Maybe there are other good arguments in Professor Dworkin's work against majoritarian democracy, but they are not found here.

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