Inductive Risk and the Legitimacy of Non-Majoritarian Institutions

In political discourse, it is common to claim that non-majoritarian institutions are legitimate because they are technical and value-free. Even though most analysts disagree, many arguments for non-majoritarian legitimacy rest on claims that work best if institutions are, in fact, value-free. This paper develops a novel standard for non-majoritarian legitimacy. It builds on the rich debate over the value-free ideal in philosophy of science, which has not, so far, been applied systematically to political theory literature on non-majoritarian institutions. This paper suggests that the argument from inductive risk, a strong argument against the value-free ideal, (1) shows why a naive claim to value freedom is a poor general foundation for non-majoritarian legitimacy; (2) provides a device to assess the degree of democratic value inputs required for an institution to be legitimate; which (3) shows the conditions under which a claim to technical legitimacy might still be normatively acceptable.