Papers by Adam Strychaluk
Abstract: A class of arguments is rationally incontestable to the extent it is theoretically irre... more Abstract: A class of arguments is rationally incontestable to the extent it is theoretically irresolvable even by idealized rational individuals who are not subject to practical human limitations (i.e., a priori), and is rationally contestable to the extent it theoretically must be resolved by such idealized individuals a priori. Relatedly, a class of arguments is practically inadjudicable when resolution of such arguments is impracticable due simply to practical, real-world considerations (e.g., bad faith actors), and practically adjudicable when such considerations do not prevent resolution. Note that conceptually, rational incontestability necessitates practical inadjudicability, while rational contestability does not necessitate practical adjudicability. Typically, arguments regarding value judgments and preferences (collectively, "ends") are thought to be rationally incontestable, and thus practically inadjudicable, while arguments regarding action-guidance or policies ("means") are thought to be rationally contestable once ends are settled, even though such arguments may ultimately be practically inadjudicable due to real-world considerations.
In this paper, I argue (1) that a proper appreciation of Bayesian probability theory reveals that arguments regarding means are rationally incontestable in the exact same way arguments regarding ends are typically thought to be; that is, that even idealized rational agents must "agree to disagree" about the proper selection or implementation of means even when they share the same end(s), i.e., even where a perfectly definite "common good" obtains. Further, I argue (2) that the rational incontestability of means thesis has profound implications for various problems in deliberative democratic theory regarding legitimacy and "rational sanction," notable among them questions pertaining to the existence of a (quintessentially utilitarian) common good and theories of public reason. In particular, I argue the incontestability thesis (a) undermines the notion of determining legitimacy with reference to the common good even should value-pluralistic objections to the concept fail; (b) undermines "non-convergent" ("strong consensus") accounts of the "structure" of public reason; (c) undermines the autonomy and respect justifications for employing public reason as a partial or complete measure of legitimacy; and (d) buttresses worries that public reason is insufficiently truth-sensitive and/or "incomplete."
In the course of these arguments, I focus in particular the work of Hannah Arendt, and discuss issues and counterarguments to my central theses regarding Aumann's Agreement Theorem, the problem of Bayesian classification ("model selection"), W.B. Gallie's notion of "essentially contested concepts," the separateness of persons objection to utilitarianism, and the use of Rawls' original position as a heuristic device.
[Law School Student Note]
Abstract: In this paper I provide a defence of legal constitutionalism, and in particular its oft... more Abstract: In this paper I provide a defence of legal constitutionalism, and in particular its often-attendant practice of judicial review, against what I understand to be its two strongest critiques. First, Richard Bellamy’s radical, republican-grounded criticism in Political Constitutionalism, in which he argues that judicial review “strips the people of their most basic ‘constitutional’ right: the power to address afresh any issue and to decide together, as equals, how to handle it,” adding that “[b]y denying people this power and by empowering, instead, a group of judges who are not accountable to the people, legal constitutions set up regimes of domination in which almost everyone is subject to the arbitrary rule of others.” Second, I hope to defend against the more moderate, liberal criticisms made by Jeremy Waldron in Law and Disagreement and The Core of the Case Against Judicial Review, among other places. I make my defence not on the “uneasy” grounds of Richard Fallon, fearing that strong judicial review represents a compromise in democratic values, nor on the largely stipulative grounds of Samuel Freeman and various other contractarians. My defence, rather, is made on what I have called in my subtitle political constitutionalist grounds, by which I mean simply that it is made first, while accepting the relevance to the argument of freedom understood as non-domination; second, while accepting the Jeffersonian stress on the pre-eminence of present legislative bodies (that is, whilst concerned with the prima facie democratic illegitimacy of the ‘dead hand of the past’); and third, while accepting that collective decision-making procedures should be valenced toward bare majoritarianism (50%+1) and that deviations from this procedure require substantial justification.
[Undergraduate Paper]
Abstract: Against the voluminous literature either explicitly contending or implicitly ceding tha... more Abstract: Against the voluminous literature either explicitly contending or implicitly ceding that rules impede the executive branch in its pursuit of national security during periods of emergency, and much of which takes for a corollary the claim that on grounds of national security it is therefore desirable to have the judiciary adopt a policy of strong or ‘strict’ deference to the executive in these periods, this paper contends that even—especially—in times of emergency rules can enable rather than constrain the executive in this pursuit. More specifically, this paper couples a general defence of the utility of ruleness in times of emergency to the contention that maximally efficient counter-terrorism requires the executive follow rules enshrining adversarial justification (hereafter ‘adversarial rules’), and argues that in times of emergency government acts irrationally to the extent it does not abide and enforce such rules. Adversarial rules are second-order rules pertaining to decision procedures; they include ex ante rules requiring parliamentary or Congressional approval for executive action (e.g., the 1973 United States War Powers Resolution) as well as ex post rules requiring the executive justify its actions either to a legislative or judicial body (e.g., Congressional oversight committees; the right of citizens to be tried by civilian courts as opposed to military tribunals). The enforcement of adversarial rules is understood here to indirectly preclude, taking the American experience as an example, unilaterally defying judicial discovery orders, the use of FISA courts, over-classifying and attaching gag-orders to national security letters and doctrines, and routine invocation of the States Secret Doctrine, among other things.
The ‘tradeoff thesis’ envisions a Pareto frontier bounding security and liberty, indicating that in certain circumstances more of one must be purchased at cost to the other. Given present practices, the claim that adversarial rules are security-enabling amounts to the claim that liberal democracies currently function below the frontier in times of emergency, and that it is therefore rarely if ever necessary to trade liberty off for increased security. Made on these grounds, this argument has two implications of particular import. First, it largely collapses the distinction between the ‘panic’ and ‘democratic failure’ accounts of emergency, the former of which holds that government acts irrationally in times of emergency, and the latter of which holds that government acts in a rational but not well-motivated fashion. Put simply, if the argument made in this paper follows, democratic failure—the neologistic designation for the various mechanisms by which majorities externalize the costs of security onto domestic minorities—would appear merely symptomatic of irrational government action--that is, of panicked decision-making. Second, the argument made in this paper, if sound, casts into serious doubt the wisdom of strict judicial (and legislative) deference in times of emergency.
Although this paper is written primarily with the American experience in mind, it is not intended to be an American or even post-9/11 study. Rather, the arguments set forth are intended to be understood as generally applicable to all constitutional democracies faced with violent emergencies.
[Undergraduate Thesis]
Abstract: In A Theory of Justice Rawls attempts to build justice as fairness out of little more t... more Abstract: In A Theory of Justice Rawls attempts to build justice as fairness out of little more than the rational self-interestedness of (properly situated) contracting parties. This means that, in order to properly develop justice as fairness as a viable alternative to utilitarianism, Rawls must establish that the rational contracting parties he envisions—the occupants of the original position—would prefer his two principles of justice over the utilitarian’s principle of utility maximization; that is, Rawls must establish that the occupants would will his two deontological principles of justice and not a utilitarian principle that leaves rights, liberties, and primary goods and their distribution contingent upon circumstances that the occupants cannot anticipate from their position behind the veil of ignorance. Rawls’ argument to this effect hinge upon his contention that parties situated within the original position would apply a decision procedure known as maximin, which is a pessimistic approach to decision making, requiring one to select the option—or, in this case, the set of society-structuring principles—with the best worst case scenario, i.e. to maximize the minimum returns.
In focussing on decision theory and in grounding his argument for justice as fairness upon a minimal number of normative axioms, Rawls meant for his theory to establish as both absolute and rational the prohibition against sacrificing the individual at the altar of aggregate welfare. This paper contends that this project fails on its own terms. The primary contention of this paper is simply that, even with his own assumption made, Rawls is incorrect in arguing the occupants of the original position would apply maximin. Rather, in the absence of an additional assumption that the parties in the original position are perfectly risk averse—an assumption Rawls explicitly denies making—such occupants would apply the alpha-index decision procedure and not maximin when they adjudicate between competing potential principles.
[Undergraduate Paper]
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Papers by Adam Strychaluk
In this paper, I argue (1) that a proper appreciation of Bayesian probability theory reveals that arguments regarding means are rationally incontestable in the exact same way arguments regarding ends are typically thought to be; that is, that even idealized rational agents must "agree to disagree" about the proper selection or implementation of means even when they share the same end(s), i.e., even where a perfectly definite "common good" obtains. Further, I argue (2) that the rational incontestability of means thesis has profound implications for various problems in deliberative democratic theory regarding legitimacy and "rational sanction," notable among them questions pertaining to the existence of a (quintessentially utilitarian) common good and theories of public reason. In particular, I argue the incontestability thesis (a) undermines the notion of determining legitimacy with reference to the common good even should value-pluralistic objections to the concept fail; (b) undermines "non-convergent" ("strong consensus") accounts of the "structure" of public reason; (c) undermines the autonomy and respect justifications for employing public reason as a partial or complete measure of legitimacy; and (d) buttresses worries that public reason is insufficiently truth-sensitive and/or "incomplete."
In the course of these arguments, I focus in particular the work of Hannah Arendt, and discuss issues and counterarguments to my central theses regarding Aumann's Agreement Theorem, the problem of Bayesian classification ("model selection"), W.B. Gallie's notion of "essentially contested concepts," the separateness of persons objection to utilitarianism, and the use of Rawls' original position as a heuristic device.
[Law School Student Note]
[Undergraduate Paper]
The ‘tradeoff thesis’ envisions a Pareto frontier bounding security and liberty, indicating that in certain circumstances more of one must be purchased at cost to the other. Given present practices, the claim that adversarial rules are security-enabling amounts to the claim that liberal democracies currently function below the frontier in times of emergency, and that it is therefore rarely if ever necessary to trade liberty off for increased security. Made on these grounds, this argument has two implications of particular import. First, it largely collapses the distinction between the ‘panic’ and ‘democratic failure’ accounts of emergency, the former of which holds that government acts irrationally in times of emergency, and the latter of which holds that government acts in a rational but not well-motivated fashion. Put simply, if the argument made in this paper follows, democratic failure—the neologistic designation for the various mechanisms by which majorities externalize the costs of security onto domestic minorities—would appear merely symptomatic of irrational government action--that is, of panicked decision-making. Second, the argument made in this paper, if sound, casts into serious doubt the wisdom of strict judicial (and legislative) deference in times of emergency.
Although this paper is written primarily with the American experience in mind, it is not intended to be an American or even post-9/11 study. Rather, the arguments set forth are intended to be understood as generally applicable to all constitutional democracies faced with violent emergencies.
[Undergraduate Thesis]
In focussing on decision theory and in grounding his argument for justice as fairness upon a minimal number of normative axioms, Rawls meant for his theory to establish as both absolute and rational the prohibition against sacrificing the individual at the altar of aggregate welfare. This paper contends that this project fails on its own terms. The primary contention of this paper is simply that, even with his own assumption made, Rawls is incorrect in arguing the occupants of the original position would apply maximin. Rather, in the absence of an additional assumption that the parties in the original position are perfectly risk averse—an assumption Rawls explicitly denies making—such occupants would apply the alpha-index decision procedure and not maximin when they adjudicate between competing potential principles.
[Undergraduate Paper]
In this paper, I argue (1) that a proper appreciation of Bayesian probability theory reveals that arguments regarding means are rationally incontestable in the exact same way arguments regarding ends are typically thought to be; that is, that even idealized rational agents must "agree to disagree" about the proper selection or implementation of means even when they share the same end(s), i.e., even where a perfectly definite "common good" obtains. Further, I argue (2) that the rational incontestability of means thesis has profound implications for various problems in deliberative democratic theory regarding legitimacy and "rational sanction," notable among them questions pertaining to the existence of a (quintessentially utilitarian) common good and theories of public reason. In particular, I argue the incontestability thesis (a) undermines the notion of determining legitimacy with reference to the common good even should value-pluralistic objections to the concept fail; (b) undermines "non-convergent" ("strong consensus") accounts of the "structure" of public reason; (c) undermines the autonomy and respect justifications for employing public reason as a partial or complete measure of legitimacy; and (d) buttresses worries that public reason is insufficiently truth-sensitive and/or "incomplete."
In the course of these arguments, I focus in particular the work of Hannah Arendt, and discuss issues and counterarguments to my central theses regarding Aumann's Agreement Theorem, the problem of Bayesian classification ("model selection"), W.B. Gallie's notion of "essentially contested concepts," the separateness of persons objection to utilitarianism, and the use of Rawls' original position as a heuristic device.
[Law School Student Note]
[Undergraduate Paper]
The ‘tradeoff thesis’ envisions a Pareto frontier bounding security and liberty, indicating that in certain circumstances more of one must be purchased at cost to the other. Given present practices, the claim that adversarial rules are security-enabling amounts to the claim that liberal democracies currently function below the frontier in times of emergency, and that it is therefore rarely if ever necessary to trade liberty off for increased security. Made on these grounds, this argument has two implications of particular import. First, it largely collapses the distinction between the ‘panic’ and ‘democratic failure’ accounts of emergency, the former of which holds that government acts irrationally in times of emergency, and the latter of which holds that government acts in a rational but not well-motivated fashion. Put simply, if the argument made in this paper follows, democratic failure—the neologistic designation for the various mechanisms by which majorities externalize the costs of security onto domestic minorities—would appear merely symptomatic of irrational government action--that is, of panicked decision-making. Second, the argument made in this paper, if sound, casts into serious doubt the wisdom of strict judicial (and legislative) deference in times of emergency.
Although this paper is written primarily with the American experience in mind, it is not intended to be an American or even post-9/11 study. Rather, the arguments set forth are intended to be understood as generally applicable to all constitutional democracies faced with violent emergencies.
[Undergraduate Thesis]
In focussing on decision theory and in grounding his argument for justice as fairness upon a minimal number of normative axioms, Rawls meant for his theory to establish as both absolute and rational the prohibition against sacrificing the individual at the altar of aggregate welfare. This paper contends that this project fails on its own terms. The primary contention of this paper is simply that, even with his own assumption made, Rawls is incorrect in arguing the occupants of the original position would apply maximin. Rather, in the absence of an additional assumption that the parties in the original position are perfectly risk averse—an assumption Rawls explicitly denies making—such occupants would apply the alpha-index decision procedure and not maximin when they adjudicate between competing potential principles.
[Undergraduate Paper]