Only If you are really bored!

Marsilius of Padua argued that the human legislator, that is the entire body of citizens, is the primary and proper efficient cause of the law. This is not to say that the entire body must create the law per se. Rather, it is best that the laws be created, or discovered, by a knowledgeable group, which he calls the wise men, who have the leisure to do so. However, the laws must then be judged by the entire body of citizens, the universitas civium, and hold no force lest the weightier part thereof should approve them. He proposes that this method is superior to that of having some number of wise men determine the laws because in the entire body of citizens the wise men are included, and no matter their wisdom, it cannot exceed that of the unified body. Moreover, the observance of a law depends in great part on whether or not the affected parties had a say in its creation. Thus, if the entire polity were to be engaged in the process of lawmaking, it would be to the benefit of the community as it would bring about greater adherence to the rule of law.
Consider first Marsilius’ use of the Averroistian doctrine of the unity of the intellect in mankind. Marsilius assumes that the will of the universitas civium is non-futile, that is, if it should seek some object, some goal, it has both the resources to achieve said goal and in fact achieves it. Certainly, if we assume this, the goal of the universitas civium would presumably be the furthering of the common good, as this is equivalent to stating that one seeks what is best for oneself, this further being equivalent to an argument of the transitivity of preferences, which is provable assuming that one is instrumentally rational. Here by instrumentally rational, we mean that an agent A makes decisions such that A has a sound basis for believing that those decisions create the best prospects for achieving A’s goals. Marsilius implies that the citizens are instrumentally rational, as he specifically mentions the existence of people of deformed nature, who disagree with the common decision not for any flaw in reasoning that the consensus may possess, but merely for the sake of disagreement, whether through malice or ignorance; that is, he separates the non-instrumentally rational from the general body of citizens. If then, we consider only those citizens who are instrumentally rational, then the decisions arrived at by the universitas civium must also be instrumentally rational, since any decision that is not so could not be accepted by any of the citizens individually once the reasoning is presented to them.
There is one catch that must be examined involving our use of instrumental rationality. If I am to say “person A is instrumentally rational only if A has a sound basis for believing that the decision is the best prospect for furthering A’s goals”, there is first the question of whether goals may conflict with each other. I cannot satisfy my desire to eat at McDonald’s for a month and still satisfy my desire to lose weight. But this can be fixed by having an ordinal ranking, or a cardinal one. Of these, a heuristic version of the latter is more likely in individuals, as the former would require an abhorrent amount of mental storage. There is, however, also the question of why I think my basis for my belief is sound, and even further, why my basis for my basis of my belief is sound, ad infinitum. But this is no more than stating that it is not possible for any one person to be perfectly instrumentally rational; one can only approximate the ideal. This is an addition to Marsilius’ argument of the insufficiency of the few, as he only stated that one may not possess a sufficiently comprehensive knowledge, or may have ulterior motives other than acting for the good of the community; the addition is that the process of determining the proper line of action from the relevant information is itself infinite in structure, and by no means is it apparent that it is a convergent infinite series.
If the series is not convergent, then even the universitas civium could not say with certainty that the decision reached is the best, even if we increased its numbers indefinitely. In this case, we may be able to say that the universitas civium is perfect in regards to the relevant information, but yet imperfect as regards the decision that proceeds from the information. Thus, we cannot say for certain that the will of the universitas civium is non-futile. Now, if each individual were to work for the goal of the common good, then the probability of success increases with the number of individuals, but note this is not the situation Marsilius suggests.
Marsilius suggests that if each person were to look for their own good, that is, that if a law not be disagreeable to oneself, then one should endorse it. From this proceeds his statement that it is better that the universitas civium be the lawmaker rather than the few, since if a law be agreeable to oneself, one is more likely to follow it. Marsilius does not imagine that the entire body of citizens would agree unanimously; it is quite likely that a law may be agreeable to a few, or even to many, but nevertheless is agreeable to the majority (technically the weightier part thereof), and thus it is passed.
We have thus changed the nature of the game from being one in which the common good of the community is sought to one in which private good is sought. Here we must make a distinction that Marsilius did not make. There may be a veil of ignorance in regards to knowledge of who voted for what. It is not always clear who precisely a law may favor, and even if one should consider that it favors that person, it is not necessarily true either that the law indeed favors him, nor even that said person will vote in favor of the law; perhaps he has seen with foresight if the law does not pass, he will be held responsible, and thus incur greater losses as a result than the gains which are had due to the law itself. If the veil were removed for a select group of people, the basin of attraction would be greatest for strategies which cooperate with those people; thus for Marsilius’ system to work, it would be best to have non-anonymous voting as opposed to anonymous voting, assuming that there is always some chance that the vote counter will try to keep track of who voted what, or some chance that this psychological state of belief is possessed by some. If there is a veil, and defection goes unpunished, it seems that we would degenerate towards the state of nature of Hobbes. This is because each individual vote would resemble either a Prisoner’s Dilemma or a Stag Hunt, depending on the circumstances. In the former case, given iterated play, the impossible of guaranteed retribution against defection decreases the basin of attraction of cooperative strategies, even those which are retributive to defective strategies by decreasing the expected utility of a cooperative, retributive strategy while increasing the expected utility of a defective strategy. While a defective strategy would have remained defective against another defective strategy anyways, and thus not have changed its score, cooperative, retributive strategies would have worked with each other and banded together against the defective strategies; consider this a correlation coefficient. The higher the correlation coefficient, the greater the utility gained by the cooperative strategies. This affects the results of voting due to the correlated strategies banding together, as a voting block, in addition to its correlated activities outside of voting. Even if in the first instance, the block is incapable of achieving the weightier part described by Marsilius, and it is possible that multiple blocks may result, the non-correlated strategies are isolated, and die out; eventually, it is extremely likely that there will be a weightier block, for when only blocks remain, they themselves can then be treated as individuals, and thus the dynamics continue from there. But, putting on the veil, the correlation coefficient is dramatically decreased, and the basin of attraction that leads to the weightier block decreased as well. A similar effect occurs if our situation is better modeled by the Stag Hunt, for the reason that if we have a veil, we are inherently taking a risk when we choose a strategy. The risk dominant strategy to play in this case is to defect. There is a variation of the Symmetry Fallacy which is not a fallacy itself (or at least not obviously so) that results in an individual choosing to cooperate in both the Prisoner’s Dilemma and the Stag Hunt, even if it is one shot only. Note that if cooperate were viable even in the circumstance of no iteration, it would by the same reasoning be the strategy to use should the game continue indefinitely. The argument goes as follows.
If you are a rational person like me, then you should follow a thought process similar to mine. Now considering the possible effects of particular circumstances, your thought processes might be slightly changed from normal. That is, let us say there is some quantity b, between 0 and 1, which is affecting your judgment. But since you are rational, you must choose a p, again between 0 and 1, such that if b<p, then you will choose to cooperate. Now, depending on the values associated with both sides cooperating, one particularly side defecting, and that of both sides defecting, the maximization of your expected utility, and also of mine when I perform this calculation, occurs at p=1. This result occurs for most reasonable values that we would put into our payoff matrix. Thus, if we are both rational, we should both cooperate. Yet, this is assuming that I know how you think. Since I cannot know for certain, it seems profitable to multiply every single possible mental state by the probability I assign to it, that you would have that mental state. But this begs the question of why I assigned those probabilities, which almost certainly I could not give in the general case. Then, if I am rational, I should have some qualms concerning the reliability of this method, and so should you. This suggests that the risk management approach highlighted in the previous chapter is more likely the actual evaluative method used in cases where one does not know who precisely one is interacting with, which is the case with the veil, for even though we know everyone votes, because we do not know who cooperated with us and who did not. Thus we cannot build up a history of track records, and in this field, we cannot with instrumental rationality assign any specific probabilities to mental states. We do not know if others really do think like us. Using the risk management approach then, it is not in any way guaranteed that individuals seeking their own good will result in the common good being sought as a sort of aggregate effect; nor is it guaranteed that any decision would be arrived at by some weightier portion of the universitas civium.
However, as we have pointed out, it is possible to expand the basin of attraction of that ideal situation in which the individuals seek the common good, even if initially they seek their own good, or even if at heart, they still desire their own good exclusively. Here we have assumed that the state of nature has already been escaped, though the natural state may still be in some individuals, or even all.
Suppose though that those who were elected by the universitas civium to possess the representative power within the state saw this. It would not be in their interest to allow any of the developments we have required to come to pass. But, assuming that they did not find it in their interest, would it be in the interest of the citizens themselves to force it upon their representatives, thus cooperating with their fellows and reducing the chance that they will be able to seek their own individual benefit, which may not be in line with the common good which would be sought should all our preconditions hold? Here we know who is cooperating with us and who is not; there is no veil. The only reliable method open to the ruling group that I can see is if they were to promote faction within the state, so that some portion of the universitas civium cooperated with them, rather than the polity, or any other faction that may exist. If they have the foresight, they should carefully balance their actions so that it does not lead to civil war, as Machiavelli pointed out is often the result of faction, but at the same time does not lead to their losing their grip on power. This state would then be that which was observed by Hume, when he wrote about the Original Contract.
Of course that state may be avoided, either due to failings on the part of the ruling class, or by the actions of some other faction which altruistically seeks the conditions we have mentioned. One must keep in mind though, that there are many pitfalls no matter whether we initially entrust this power to the universitas civium or to a select ruling group, say of wise men. It is not guranteed that the stable condition Marsilius seeks will come to pass, but if it should, then power must be in the hands of the universitas civium, for the reasons Marsilius gives, as they hold in that state of being.
Marsilius also mentions some arguments against his statements which were propounded by his contemporaries; it is difficult to harmonize so many different views as is possessed in the universitas civium; that the number of the stupid is infinite (a quote from Ecclesiastes), and thus it is best if they were not involved in lawmaking, thus lawmaking is best in the hands of the few; furthermore, law can be made just as well by the few, so there is no need to burden the many.
Marsilius’ response to the first objection is that even though it may be easier to harmonize the views of the few than of the many, it does not follow that the view of the few, or part, are superior to that of the many. There would not be as great an incentive for the few to seek the common good, as opposed to the incentive provided to that of the many, since the few would seek their own private benefits instead. This in fact follows from the discussion above, since in the absence of retribution for defection, which in effect is what would occur should the power be in the hands of the few, as the many could not punish them for defecting; that is, seeking their own good and abandoning that of the many.
To the second objection, Marsilius replies that most of the citizens are neither vicious nor undiscerning most of the time, since the weightier part of the people must desire that the state continue to exist; else the state would not, and then the needs of man would not be sufficiently met. Thus they must wish that without which the state cannot endure, and this is to seek the just. Furthermore, even though they may not individually be capable of discovering good laws, they can nevertheless judge the quality of the law given their own circumstances, and their judgment be used to improve the quality of the law. Here he again presupposes that the citizens will judge for the common good, even in those circumstances where the survival of the state is not at risk, or is not foreseen to be at risk, although we have shown this is not too great an issue. Otherwise, his point is remarkably close to the idea of the use of particular knowledge in a decentralized system to do what no centralized system could do, due to lack of said knowledge, which was later proposed by Hayek.
To the last objection, Marsilius states that its refutation follows from the refutations of the previous two objections; the laws cannot be better made by the wise as opposed to by the universitas civium, of which the wise are part. Thus, the very statement of the third objection is null.
Given the addition of the elements we mentioned above, most importantly the condition of non-anonymity, a system of popular sovereignty can be maintained, with its justification coming from the arguments of Marsilius. There is the prior question of how the state came about in the first place, and here Marsilius’ argument concerning the necessity of community in order to possess a sufficient life does not hold after a certain limited community is reached. However, the prior question is beyond the scope of this essay, and once the state is formed, then Marsilius’ argument holds for why men would seek the continuance of the state (and that is Marsilius’ main usage of the argument), so we do not have to worry too much on this part. Popular sovereignty should be upheld; one must nevertheless be careful to avoid the pitfalls that lead to those undesirable polymorphic outcomes which Marsilius did not predict when arguing from his base assumptions.