Listen up! In defence of a robust right to petition

Abstract

Rights to petition occupy an unusual position in political theory. Legally speaking, few political rights are as long-established or ubiquitous. Yet, philosophers have rarely, if ever, engaged in a sustained analysis of their contents or justification. On the rare occasions when such rights have been discussed, they are also often treated with a degree of quietism, if not outright scepticism. If there is a right to petition, so the thinking goes, then it must be a relatively minimal right, which is to say, one that secures for its holder no more than that to which they are already entitled under, say, their right to free speech. In this article, I reject this view. Instead, I argue that, unlike rights to free speech, citizens’ rights to petition secure a duty on public officials to engage in a certain decision-making process with regards to petitioners’ petitions. In short: they have a duty to listen. In this way, I claim citizens enjoy a far more ‘robust’ right to petition than many polities currently recognise.

Keywords

petitioning political participation democracy political equality political theory

Main text

My subject in this article is the right to petition. I use the word ‘petitioning’ here, and throughout this article, in the older, broader sense of ‘making an appeal’, as opposed to the more modern, narrower sense of submitting a written request, signed by many parties. More specifically, I take it that a citizen, P, can be said to petition a public official, Q, just in case P actively engages with Q, in order to achieve some political goal.¹

Rights to petition occupy an unusual position in political theory. Legally speaking, few political rights are as long-established or ubiquitous. Citizens’ rights to petition are a common feature of constitutions worldwide, with such recognition often dating back centuries.² Yet, philosophers have rarely, if ever, engaged in a sustained analysis of their content or justification.³ On the rare occasions when such rights have been discussed, they are also often treated with a degree of quietism, if not outright scepticism. If there is a right to petition, so the thinking goes, then it must be a relatively minimal right, which is to say, one that secures for its holder no more than that to which they are already entitled under, say, their right to free speech.⁴

One way the ‘Minimalist’ sometimes looks to motivate their position here is by raising the spectre of the ‘Maximalist’. According to the Maximalist, citizens’ rights to petition do secure more than that to which they are entitled under their rights to free speech, indeed much more. For example, they secure not only a duty on public officials to refrain from interfering with citizens when they are making petitions (as their rights to free speech do) but also a duty on those public officials to act on whatever petitions citizens make (as their rights to free speech certainly do not). Presumably, the Minimalist argues, we have good reason to think that Maximalism is more objectionable than Minimalism. As such, they conclude, we must prefer the Minimalist view.

I think that the Minimalist is right about some of the problems with more Maximalist views. However, I also think that, in making these arguments, the Minimalist overlooks alternative conceptions of the right to petition, lying somewhere on a spectrum of responsiveness between Minimalism and Maximalism, which might do better than either. In this article, I look to defend one such solution, one I term the ‘Robust’ view. According to

The Robust view: P's right to petition is correlate with a duty on public officials to both: (i) refrain from interfering in P's efforts to express themselves about some matter of public policy; and, (ii) engage in a suasive decision-making process with regards to P's petitions.

My argument is not that the Robust view constitutes the only viable compromise between Minimalism and Maximalism, nor that it is necessarily the best. Rather, what I argue is that it is at least one viable solution and that it offers a near Pareto improvement over both the other positions currently on the table, namely: Minimalism and Maximalism (‘Near Pareto improvement’ in the sense that it is better – less objectionable – in several respects and not substantially worse in any). Thus, until such a time that we can establish an even better view, we ought to endorse the Robust view as our default view of what constitutes citizens’ rights in this area.⁵

This conclusion has important practical implications. As I write, citizens around the world find their rights to petition under attack. In some countries – most notably, in China (Li et al., 2012; cf. Wong and Peng, 2015) and Russia (OVD-Info Website, 2022) but also elsewhere (Inter-American Commission on Human Rights, 2016) – governments have explicitly pursued policies either openly challenging the idea that citizens possess such rights or hindering citizens’ ability to exercise them. This might be considered standard practice in what are often authoritarian regimes. However, even within more democratic settlements, governments will often talk down or understate public officials’ duties in this area. For example, in the United States, successive governments have been quick to recognise citizen's rights to petition under the First Amendment. Yet, on the dominant legal interpretation of that right, public officials are under no duty actually to do anything with regards to any petitions petitioners make – in effect, an endorsement of the Minimalist View. As the Supreme Court put it in Minn. Bd. Commun. for Colleges v. Knight,

Nothing in the First Amendment or in this Court's case law interpreting it suggests that the rights to…petition require government policymakers to listen or respond to communications of members of the public on public issues. (Minn. Bd. Commun. for Colleges v. Knight, 1984; see also Krotoszynski, 2012)

According to the arguments I offer here, policies like these are not merely bad, or even wrong, but wronging: they violate citizens’ moral right to petition. In this way, this article has an important practical purpose: it provides political activists with a powerful argument against these kinds of policies.

The article progresses as follows. In the first section, I give a fuller definition of what I mean by the term ‘petitioning’. In the second section, I set out three possible views on the content of the right to petition: the ‘Minimalist’ view, the ‘Maximalist’ view and the ‘Robust’ view. (Note: in this section I also raise, and dismiss, the possibility that citizens do not even possess a Minimal right to petition.) In the third section, I argue, with the Minimalist, that individuals have good reason to reject the Maximalist view. In fourth section, however, I then argue, with the Maximalist, that individuals also have good reason to reject the Minimalist view. With these objections on the table, in the fifth section, I argue that there is a position that does better than either the Minimalist or the Maximalist view: namely, the Robust View. In the sixth section, I consider and rebut various counters. I conclude in the seventh section.

As may be clear from above, much of my argument has a strong contractualist flavour. Roughly, my argument will be that principles permitting the enforcement of a Robust right to petition are those no-one can reasonably reject (cf. Scanlon, 2001; see also Darwall, 2006). I adopt this framework because I think contractualism offers the clearest way of thinking through the relevant considerations, as well as the most compelling account of what makes wrong actions wrong. But much of my argument could also be rendered in non-contractualist terms.⁶ So, even if you are not a contractualist, there should be enough of interest in what follows to merit reading on.

Defining petitioning

Let us begin by defining the kind of activity we are examining. As above, by petitioning I understand a political activity involving at least two individuals. First, some individual, who is not a public official (or set of such individuals), we can label ‘P’. Second, a public official (or set of public officials), we can label ‘Q’. I then take P to petition Q just in case

P actively engages with Q, in order to achieve some political goal, G.

This definition is intentionally broad. That is, I think we understand petitioning best when we understand it as a broad kind of political activity, one in which some individual, or set of individuals, attempts to achieve their political goals through actively engaging, in various ways, with agents we can identify as within the ‘government of the day’.⁷ Such activities may include many of the activities we might traditionally associate with such a term: for example, written petitions signed by many parties, or arguments made in private (say, in constituency surgeries or meetings with elected officials or their proxies). However, they may also include other, more public activities, less traditionally associated with petitioning yet still sharing key features with paradigm cases: for example, arguments made to public officials in speeches or articles, on radio or television, in town hall meetings or during public demonstrations. Although not always recognised as ‘petitioning’, such acts are, in my view, still acts by which some set of individuals, who are not public officials, are attempting to achieve some political goal through active engagement with public officials.

My definition of petition, therefore, errs on the side of inclusiveness. However, there are still many political activities this definition will exclude. One important set are all those activities by which P might attempt to achieve some political goal without actively engaging with a public official. Since the idea of ‘active engagement’ is central in a lot of what follows, I will say a little bit more about it here.

As above, I take petitioning to be a goal-directed activity. However, we can understand that activity as having two distinct goals: a political goal and a pre-political goal. The political goal is the general adoption of some public policy (G in the notation above). The pre-political goal is the endorsement and support of G, or policies that make the realisation of G more likely, by a public official – call this F. From here, we can then understand the qualification that P's attempt to influence public policy must be by way of actively engaging with public officials as a restriction on the means by which individuals might achieve F (if their efforts are to be taken as petitioning in the relevant sense). Specifically,

P's attempt to achieve F by act A constitutes actively engaging with Q iff A can be understood as an attempt by P to persuade Q that they ought to endorse and support G (or policies that make the realisation of G more likely).

I do not intend ‘persuasion’ here to be taken too strictly. For example, it is not necessary on my view for such persuasion to be by way of an exchange of reasons. Encouraging, pleading or demanding could, on my account, constitute a kind of persuasion. However, one thing such a definition rules out are various acts by which individuals might seek to achieve F that could not reasonably be considered exercises in persuasion.

For example, suppose a group of Extinction Rebellion activists were trying to encourage an elected official to adopt a ‘greener’ set of public policies. Suppose also that the way they tried to accomplish this was by alerting local citizens to their role in anthropogenic extinction by way of a leaflet campaign. It may be that, by such acts, those activists make that official more likely to support and adoption of green public policies. (Where the campaign is successful, the official may feel their electoral chances are improved by adopting greener policies.) On my account, however, even if such acts make an elected official's support of Extinction Rebellion's political goals more likely, they do not constitute an act of persuasion. One thing that such activity lacks, for example, is any form of communication between the petitioner and the petitioned. As such, I do not take such acts to constitute a form of petitioning.

Another set of acts my definition excludes are bribes and threats. Some might claim that these acts can also constitute a kind of persuasion. We can imagine, for example, a gangster jokily boasting to his fellow criminals, ‘I can be very, very persuasive’. However, I do not find this kind of argument convincing. Rather, I take it we recognise the gangster's statement as a joke precisely because we do not usually take bribes and threats to fall within the bounds of what it means to bring someone around to a particular position. Instead, such acts look like a form of manipulation: in Mele's terms, they bypass privileged means by which agents modify the values and principles they judge to be in order (Mele, 1995: 166–172, 183–184).

Note: this distinction allows us to take a fairly fine-grained view on the normative status of different kinds of acts, even within the same broad activity. For example, consider the Capitol riots on 6 January 2021. When, on that day, certain supporters of President Trump called for Vice-President Pence to send Electoral College votes back to states for ‘correction’ in a bid to overturn the 2020 US Presidential Election, I believe we ought to classify their demands (however misguided) as a form of petitioning. However, when, on the same day, other Trump supporters threatened to ‘drag’ Pence and other lawmakers ‘through the street’ and ‘cut their head off’ if they certified the results (CNN Website, 2023), I hold that such acts cannot be classified as a form of petitioning: they look to bypass privileged means by which agents modify the values and principles they judge to be in order.

No doubt there may be other, thornier cases. However, for our present purposes, I think we can safely rely on an ordinary conception of when some act constitutes an attempt at persuasion and hence, other qualifications being met, when it can also be understood as a kind of petitioning.

The content of the right to petition

What are the duties on public officials correlate with citizens’ rights to petition? One way we can understand the relevant possibilities here is on a spectrum of responsiveness.

At one end of this spectrum lies what we can call the ‘Minimalist’ view. On this view, we understand the content of the right to petition best when we understand the duties on public officials correlate with such rights as consisting of nothing more (or less) than their duties under citizens’ rights to free speech. Such duties might include, for example, an obligation that Q, as a public official, refrains from interfering with P in P's efforts to express themselves about some matter. But they do not go beyond this.⁸ Certainly, P's right to petition is not correlate with an obligation on Q to respond to P's petitions, much less make any particular decision with regards to them. Thus, according to what we can call,

The Minimalist view: P's right to petition is correlate with all and only those duties traditionally associated with individuals’ rights to free speech.

At the other end of the spectrum lies what we can call the ‘Maximalist’ view. On this view, we understand the duties on public officials correlate with citizens’ rights to petition best when we understand them as consisting of much more than their duties correlate with citizens’ rights to free speech. In particular, if Q, as a public official, is to fulfil their duties under P's right to petition, it is not enough for them simply to refrain from interfering with P in P's efforts to voice a particular grievance. Rather, P's voice must be heard. That is, Q must engage in a certain decision-making process with respect to P's petitions. Moreover, this decision-making process has a definitive end: it must terminate in a decision in favour of P's petitions. To put it another way, Q must take the reasons for action presented by P as decisive. In this way, then, on the Maximalist view it would not only be unjust if Q, as a public official, were to deny P an opportunity to voice their grievances. Rather, it would also be unjust if, having heard such grievances, they were subsequently to adjudicate in a way contrary to P's petitions. Thus, according to what we can call,

The Maximalist view: P's right to petition is correlate with a duty on public officials to (i) refrain from interfering in P's efforts to express themselves about some matter of public policy; (ii) engage in a certain decision-making process with regards to P's petitions; and (iii) take the reasons for action presented by P during that process as decisive.

Between these two extremes lie all those views that claim citizens’ rights to petition extend beyond what is described in the Minimalist view but not so far as described in the Maximalist view. In this article, I defend one possibility in particular: what I call the ‘Robust’ view of citizens’ rights to petition. The Robust view, as I see it, occupies a sweet spot between the Minimalist view and the Maximalist view, offering a near Pareto improvement over both. In contractualist terms, principles permitting the enforcement of a robust right to petition are those no-one could reasonably reject. I set out this argument in the next few sections. However, for the moment let me say a little bit more about the content of the Robust view.

As with the Minimalist view, according to the Robust view, if Q, as a public official, is to fulfil their duties under P's right to petition, then they must abide by all the duties P has in virtue of their rights to free speech. As with the Maximalist view, they also need to engage in a certain decision-making process with respect to P's petitions. However, unlike the Maximalist view, there is no requirement that, at the end of this process, Q must take the reasons for action presented by P as decisive. Instead, the Robust view demands only that the decision-making process has two features. First, that Q grants P a hearing – that is, an opportunity for P to make their case. Second, that Q undertakes to make any relevant subsequent decisions in light of the case P has made. Let us call this a ‘suasive’ decision-making process.

Drawing attention to this duty – that is, to engage in a suasive decision-making process with respect to P's petitions – naturally invites further questions. We might now ask: what kind of hearing does Q need to grant, if they can be said to be fulfilling their duties under such rights? And what precisely is being asked of Q that they should make decisions in light of P's petitions? Given the confines of space, there is a limit to how much we can say here. However, let me give a brief indication of my thoughts on these questions, beginning with the second.

As I understand the Robust view here, we understand Q's duties of responsiveness best when we understand them as a kind of tracking by Q of good reasons for action presented by P. According to this account, Q could be said to be making their decision in light of P's petitions, just in case, if P were to present a (bona fide) consideration in favour of φ-ing, it would be evidence against Q being responsive in the right kind of way, if, absent countervailing reasons, they were to fail to treat it as a consideration in favour of φ-ing. This tracking need not be complete. For example, it need not be the case that if, say, P were to fail to present a consideration in favour of φ-ing, then it would be evidence against Q being responsive in the right kind of way, if, absent countervailing reasons, Q still considered it a consideration in favour of φ-ing. (After all, Q can have their own reasons for taking something to be a consideration in favour of φ-ing, independently of any interaction they might have with P.) Moreover, unlike in the Maximalist interpretation, there is no requirement that Q always needs to view the reasons for action presented by P as decisive. (We can still claim Q has tracked the good reasons presented by P even if Q ultimately came to the view that, all things considered, she ought not to φ.) Rather, the thought is only that Q is bound to make their decisions considering the cogent elements of P's petitions. What is ruled out, then, is the idea that we can still say Q is being responsive to P's petitions, even when, after P presents them with a bona fide consideration in favour of φ-ing, and despite the absence of salient countervailing reasons, Q failed to consider it a consideration in favour of φ-ing.⁹

Next, let us turn to Q's duties to grant P a hearing. Here it seems to me that one way we can understand this duty is as bound by a further set of attendant requirements. Suppose, for example, that Q were to grant P a hearing but fail to accord sufficient time for P to present their case. Then again, suppose that Q were to grant P a hearing but grant multiple others a hearing at the same time, thereby making it impossible for P to make their voice heard over the background cacophony. In both cases, I think we would want to say that, even if Q could be said in some sense to be granting P a hearing, they could not be said to be fulfilling their duties under P's right to petition. From this, then, we might infer that if Q is to fulfil their duties to grant P a hearing, they cannot grant just any hearing. Rather, they must provide a forum within which it would be possible for P to present an actionable case; that is, one to which it would be possible for Q to be appropriately responsive. One condition that will need to be met here is giving P sufficient time to present their petition. Another will be ensuring that their petitions are not overwhelmed by any competitors. No doubt there will be many others. However, given the confines of space, we can reserve discussion of these for a later date.

In summary, then, according to what we can call

The Robust view: P's right to petition is correlate with a duty on public officials to (i) refrain from interfering in P's efforts to express themselves about some matter of public policy; and (ii) engage in a suasive decision-making process with regards to P's petitions.

Before we move on, let us briefly deal with an outstanding query. Some might wonder whether there is another possible position with regards to citizens’ rights to petition: namely, that they are even less extensive than as imagined by the Minimalist view. Here we might even consider the possibility that citizens do not possess any discernible right to petition whatsoever. However, while no doubt a logical possibility, this is not a view that I think we need to discuss at length here. According to the analysis I have offered here, on the Minimalist view citizens’ rights to petition are correlate with all those duties traditionally associated with their rights to free speech. This being so, for us to claim that citizens do not even possess a Minimal right to petition (or no right to petition at all), is effectively for us to deny that they possess a right to free speech. However, since I take it that such rights have been amply defended elsewhere, I will not rehearse all those arguments here.¹⁰

Now let us turn to the differing merits of each of these views.

Rejecting the maximalist view

As mentioned in the Introduction, one of the ways Minimalists have often sought to motivate their view of the right to petition is by raising the spectre of Maximalism. By itself, Maximalism might not seem terribly plausible. However, for the Minimalist, many of the objections that we can raise to Maximalism are also pertinent to any view more maximalist than Minimalism. So, it is important to register precisely why Minimalists think individuals have good grounds to reject it. Here there are two principal objections: what I call the Objection from Wrongful Petitions and the Objection from Political Inequality.¹¹

The objection from wrongful petitions

Perhaps the first and foremost objection individuals can raise to maximalist interpretations of the right to petition is the heightened risk of harm they are likely to suffer as the result of wrongful petitions. The concern here goes something like this: where the maximalist interpretation holds sway, each citizen is afforded a significant voice over matters of public policy. Where each citizen works towards the public good, any one individual's risk of being harmed by others’ petitions is relatively small. However, to the extent that there are those who, mistakenly or consciously, petition for policies that are bad and wrong, each individual's risk of being harmed as a result of the petitions of others rises correspondingly. Thus, according to what we can call

The Objection from Wrongful Petitions: Individuals can object to maximalist interpretations of the right to petition on the grounds that such interpretations will lead to a greater risk of harmful policy than would have been the case under more minimalist interpretations.

The objection from political inequality

As well as the Objection from Wrongful Petitions, we might think that there is also another objection individuals can raise to the Maximalist view: namely, on grounds of political equality. Needless to say, how we ought to understand principles of political equality and, indeed, whether we should think such principles are even coherent, remains contested (see, e.g. Dworkin, 1986; Estlund, 2008; Gutman, 1980; Lively, 1971; Mansbridge, 1980; Miller, 1978, Pateman, 1970, Wodak, 2024). However, in broad terms, I take it that the relevant complaint runs something like this. According to the Maximalist view, one of the duties of public officials is to engage in a certain decision-making process with regards to citizens’ petitions. Such processes have the potential to be extremely advantageous to those citizens who engage with it. However, some citizens may find themselves less well placed to make use of such processes than others. For example, some may find themselves at a disadvantage because they find it harder to articulate their claims as well as others – say, because they lack the requisite kind of capabilities, or because they do not enjoy the same level of education or experience as others (cf. Sen, 1992). Then again, some may find themselves at a disadvantage because relevant hearings take place during their working hours, or in a location they cannot reach by public transport, or at a time when they have caring responsibilities. Then again, some may find themselves at a disadvantage because they lack the requisite confidence in their own views (perhaps because they also lack the requisite kind of social capital) (cf. Schattschneider, 1960: 34–35; McConnell, 1966; Lowi, 1969; see also Schlozman et al., 2012). And so on. Where these differences exist, individuals have reasonable grounds for complaint: such systems often accord equal others an unfair chance of benefiting from procedural opportunities to influence political outcomes.

Given what is to come, one important question here is what grounds these complaints. That is, why think that such a system is objectionable? The first, and most obvious reply here, perhaps, is simply the risk that such systems place over individuals. The worry is that others will use their unfair chance of influencing political outcomes to petition for policies that are bad and wrong (Scanlon, 2017: 110–112). However, even in worlds in which every citizen works towards the public good, there seems good reason to think that individuals disadvantaged by Maximalist interpretations of the right to petition can still have grounds for complaint. First, following writers like Cohen (2001), we might think that it is a requirement of political institutions – as authoritative systems for making collective decisions – that they express and secure each individual's equal standing as a citizen. Yet where those institutions permit a procedure for influencing the outcome of political decisions which accords some an unfair chance of benefiting, citizens can reasonably complain that they fail to express that standing, threatening what Cohen (2001) calls ‘the public basis of mutual respect’ (p. 53).

Second, following Rawls, we might also worry that, over the long term, permitting inegalitarian procedures runs the risk of corroding what Rawls calls the ‘fair value’ of the very liberties upon which they depend. As he explains:

The liberties protected by the principle of participation lose much of their value whenever those who have greater private means are permitted to use their advantages to control the course of public debate. For eventually these inequalities will enable those better situated to exercise a larger influence over the development of legislation. In due time they are likely to acquire a preponderant weight in settling social questions, at least in regard to those matters upon which they normally agree, which is to say in regard to those things that support their favored circumstances. (Rawls, 1999: 198)

Both these problems would continue to be problems even in worlds where everyone worked towards the public good.

Overall, then, according to what we can call:

The Objection from Political Inequality: Individuals can object to Maximalist interpretations of the right to petition on the grounds that such interpretations will often accord equal others an unfair chance of benefiting from procedural opportunities to influence political outcomes, as compared to more minimalist accounts.

Rejecting the minimalist view

Given the objections individuals can raise to Maximalist positions, one might be tempted to follow the Minimalist's encouragements and opt for Minimalism instead. However, individuals have reason to reject Minimalist views as well. Here there are two principal objections that individuals can raise: what I call the Objection from Less Extensive Opportunities and the Objection from Secondary Benefits.¹²

The objection from less extensive opportunities

Perhaps the first, and most obvious, objection citizens can raise to a Minimalist right to petition is that, where the right to petition is interpreted minimally, they are granted less extensive opportunities to take part in, and determine the outcome of, political decisions than they might have been under more maximalist interpretations.

To make this argument is, of course, to claim that citizens’ rights to petition are properly understood as occupying a similar stall to Rawls’ rights to political participation, rather than perhaps their right to free speech (Rawls, 1999: 195; cf. Universal Declaration of Human Rights, 1948: Art 21; International Covenant on Civil and Political Rights, 1966: Art 25. For scepticism see Peter, 2013). In effect, the claim becomes that, given citizens’ interest in the outcome of political decisions – decisions that can permanently affect their prospects in life – they have reason to object to any system that limits their opportunities to take part in, and determine the outcome of, such decisions. Moreover, since one way in which citizens could take part in, and determine the outcome of, political decisions is by petitioning a public official (one who is, themselves, bound to engage with such petitioning), by denying that public officials are so bound, the Minimalist view restricts opportunities for participating in political decisions that citizens may otherwise have enjoyed. Individuals in such circumstances have cause for complaint.

One open question here, perhaps, is the grounds of individuals’ complaints, where their participation in these kinds of decisions is denied. One possibility is the restriction such prohibitions place on citizens’ abilities to realise their political goals. I think this is right. But I also think the objection may be wider. That is, where the Minimalist view holds sway, it seems citizens can complain not only that they are being denied an opportunity to realise their political goals but also that they face a greater risk of public officials making poor decisions. The thought here then, is that it can sometimes be that I have an interest in all of us, rather than none of us, having an opportunity to influence political decisions. And the reason that I do is that where all of us, rather than none of us, have an opportunity to influence political decisions, it tends to be that (moderately) better decisions get made.¹³

Thus, according to what we can call

The Objection from Less Extensive Opportunities: Individuals can object to minimalist interpretations of the right to petition on the grounds that such interpretations will often preclude them from enjoying the same opportunities to take part in, and determine the outcome of, political decisions that they would have enjoyed under more maximalist interpretations.

The objection from secondary benefits

As well as the Objection from Less Extensive Opportunities, there is also another objection individuals can raise to the Minimalist view: namely, on grounds of the secondary benefits associated with petitioning activity that individuals are likely to forego where the right to petition is interpreted minimally.

One way we can get a better sense of the nature and scope of these benefits is by examining historic incidences of petitioning. For example, recent work on the history of petitioning by Carpenter has shown that, in many cases, the simple act of bringing together a written petition – of canvassing signatories, sending in the petition, tracking the response, gaining data on agreement both amongst public officials and the wider public – could generate important social and political benefits. Such activity could, for example, bring more citizens into the political sphere, initiate collective deliberation, as well as generate or expand new organisational networks. Petitioning campaigns could also be hugely influential in setting political agendas, triggering debate and disrupting political and social consensuses. Thus, merely by issuing a petition, petitioners might break up long-dominant ideas about what is (or is not) open, and fit, for discussion (Carpenter, 2021).

Some might argue that all these benefits could be attributed to minimalist interpretations of citizens’ rights to petition. The claim here would be that we can easily imagine worlds in which individuals might enjoy all these secondary benefits around issuing a petition, yet public officials having no obligation to engage with the petitions that petitioners had issued. After all, the Minimalist view does not prohibit political activity.

In response, I think we can concede this point to the Minimalist. At the same time, however, Minimalists must also surely concede that individuals have much less reason to engage in these kinds of activities where they know that public officials are in no way bound to listen or respond to anything that they have to say. As such, they are also less likely to do so. If that is right, then in most possible worlds, citizens have a complaint against polities endorsing the Minimalist view of their right to petition. Such systems make it less likely they will enjoy the same benefits they would have enjoyed, if they had the opportunity to petition public officials bound to engage with their petitions.

Thus, according to what we can call,

The Objection from Secondary Benefits: Individuals can object to minimalist interpretations of the right to petition on the grounds that such interpretations make it less likely that they will enjoy the same secondary benefits to petitioning that they would have enjoyed under more maximalist interpretations.

Defending the robust view of citizens’ right to petition

Individuals, therefore, have reason to object to both the Minimalist view and the Maximalist view. Where does this leave us?

Some may argue that, despite the objections individuals can raise to the Minimalist view, it is still less objectionable than any more maximalist position. Others might argue the converse, that, despite the objections individuals can raise to the Maximalist view, it is still less objectionable than any more minimalist position. However, I think both are mistaken. Rather, I think there is a viable alternative between both these extremes that does better than either: namely, the Robust view.

In effect, the Robust view asks whether it is possible for us to interpret the right to petition in a way that secures greater protection from objections from less extensive opportunities and secondary benefits than the Minimalist view, without raising decisive objections either from wrongful petitions or political inequality. Likewise, it also asks whether it is possible for us to interpret the right to petition in a way that secures greater protection from wrongful petitions and political inequality than the Maximalist view, without raising decisive objections from less extensive opportunities and secondary benefits.

Note: in this it is important to recognise that here we are not simply looking for a compromise that trades a gain against one objection for an equal and opposite loss against another. (If we did, why should we think that the resulting balance offers any advance over those implicit in either Minimalism or Maximalism?) Rather, what we are looking for (if possible) is a view that enjoys the advantages of both without succumbing (to a corresponding degree) to the disadvantages of either.

In my view, the Robust view occupies one such sweet spot. What enables the Robust view to occupy this position is its particular claim about the duties secured by individuals’ rights to petition. According to the view, the duties correlate with citizens’ right to petition extend further than Minimalism, insofar as it also secures a duty on public officials to engage in a suasive decision-making process with regards to citizens’ petitions. Yet, they also do not go so far as Maximalism, insofar as there is no duty on public officials to act on petitioners’ petitions. Rather, where decisions are made suasively, public officials have two primary duties: first, to grant citizens a hearing; and second, to undertake to make any relevant subsequent decisions in light of the case those citizens have made. By reading the content of the right to petition in this way, the Robust view, I want to claim, offers a near Pareto improvement over both Minimalism and Maximalism.¹⁴

To see this, we might first recognise that the Robust View, being more Maximalist than Minimalism, does much better (is much less objectionable) than Minimalism with regards to the objections from less extensive opportunities and secondary benefits. However, we can also argue that the Robust View does not do substantially worse than Minimalism with regards to the objections from wrongful petitions and political inequality.

To begin with, the Robust view offers almost as much protection from wrongful petitions as Minimalism. Admittedly, unlike the Minimalist View, where decisions are made suasively, there is a cost: there is a non-zero risk that public officials may be influenced by petitions that are bad and wrong. However, such is the design of the Robust View that the complaint here is much weaker than when it was employed against Maximalism and, moreover, seems insufficient to motivate Minimalism, given other considerations on the table. After all, here we might note that, under the Robust view, public officials are under no obligation to take the reasons for action presented by petitioners as decisive. We can still claim Q has fulfilled their duties to P, correlate with P's right to petition, even if, having heard P's arguments in favour of φ-ing, she came to the view that, all things considered, she ought not to φ. In this way, Q is permitted to reject petitions by P that are bad and wrong. Moreover, assuming P's right to petition is enforced against a backdrop of normal democratic institutions, we can take Q to be highly motivated to do so. Such institutions might include, for example, regular elections, a free press, norms of deference and guardianship, and a legal system that holds decision-makers to account for the rectitude of their decisions.¹⁵

The Robust view also offers almost as much protection from political inequality as Minimalism. Again, it is true that, as compared to Minimalism, where decisions are made suasively, there is a cost: those who are, say, more articulate, or more educated, or able to attend hearings more often, will have greater opportunities to attract the attention and consideration of public officials than those less advantaged in these respects. However, again, such is the design of the Robust View that the complaint here is much weaker than where it was used against Maximalism and, moreover, seems insufficient to motivate Minimalism. The most important point here is that, where decisions are made suasively, public officials are free to reject bad and wrong petitions by the more articulate, or more educated, or those able to attend hearings more often, while simultaneously endorsing good and right petitions by the less articulate, less well-educated, or those who are able to attend hearings only sporadically. Furthermore, again, assuming P's right to petition is enforced against a backdrop of normal democratic institutions, we can take public officials to be highly motivated to do so. In this way, when done right, suasive decision-making procedures might even be seen to have an important equalising effect: the less well-off can prove more effective at realising their political goals than the better well-off. Thus, even where we recognise such procedures may not accord all a perfectly equal chance of benefiting, citizens can be reasonably sure that they express and secure each individual's equal standing as a citizen, that they reaffirm the public basis of mutual respect and that they will not, even over the long term, have too corrosive an effect on the ‘fair value’ of individuals’ political liberties.

So, the Robust View offers a near Pareto improvement over Minimalism. However, we can also see that the Robust view offers a near Pareto improvement over Maximalism.

First, given the arguments in previous sections, we can immediately recognise that the Robust View, being more Minimalist than Maximalism, does much better than Maximalism with regards to the objections from wrongful petitions and political inequality. However, we can also argue that the Robust View does not do substantially worse than Maximalism with regards to the objections from less extensive opportunities and secondary benefits.

To begin with, the Robust view offers almost as many opportunities for participation as Maximalism. Again, as compared with Maximalism, it is true that where decisions are made suasively, there is a cost: some petitions may fail. However, again, such is the design of the Robust View that the complaint here is much weaker than where it was used against Minimalism and, moreover, seems insufficient to motivate Maximalism. Where decisions are made suasively, citizens still gain a vital opportunity to take part in, and determine the outcome of, political decisions – decisions that can permanently affect their prospects in life. Indeed, in all those cases where public officials are persuaded by petitioners’ arguments, the opportunities afforded under the Robust view and those afforded under Maximalism are effectively identical.

The Robust view also secures as many if not more secondary benefits as Maximalism. Where decisions are made suasively, public officials are bound to consider any bona fide consideration citizens make in favour of φ-ing as a consideration in favour of φ-ing. As such, citizens may campaign for change, safe in the knowledge that, where they make good arguments at public hearings, it would be a violation of their right to petition, if public officials were not to consider them good arguments – with all the secondary benefits that are generated by such a system. In this respect we might think individuals will end up enjoying more benefits than they might have enjoyed under Maximalism. After all, given that, under Maximalism, public officials are bound to act on whatever petitions a petitioner makes, it is not even clear that petitioners would need to engage in the kind of organisational activities that might benefit them, where a Robust view holds sway.

So the Robust view offers a near Pareto improvement over Maximalism.

In sum, therefore, we can say that the Robust view does better (is less objectionable) than both the Minimalist view and the Maximalist view. In contractualist terms, we can say that a principle permitting the enforcement of a robust right to petition is one that no-one can reasonably reject.

Counters and replies

There are a few ways in which one might object to the findings of the previous sections. In this section I consider and respond to what I take to be the strongest objections.

The objection from feasibility

One way some might contest the Robust view might be by raising concerns about its feasibility. We can put the complaint like this: in a relatively small political community, a robust interpretation of the right to petition might be feasible. In such a community, it would be possible for duty-bearers to fulfil their duties to each citizen under such a conception. In any polity of any real size, however, such a system would be unworkable. It would not be possible for duty-bearers to grant each citizen the hearing they are due (cf. Mark, 1997; Scanlon, 2017). (Note: here there is an implicit contrast with the Minimalist view. On the Minimalist view, there are no comparative concerns about feasibility.)

There are perhaps two ways in which we can make sense of this objection. However, in either case, I do not find the objection convincing. In the first case, we might read the objection as an objection about the coherence of a robust right to petition. On this line of thought, it might be claimed that all rights are subject to a ‘moral feasibility requirement’. According to such a requirement, if anyone can be said to have a moral right to x, it must be possible for duty-bearers to fulfil simultaneously all their duties with regards to that right, with respect to each and every right-holder.¹⁶ However, I think there is good reason to reject that position. Rather, we might think that both P and O can each have a moral right to x, even where it would not be possible for the relevant duty-bearer, Q, to fulfil simultaneously all their duties with regards to both P and O. To deny this would be to claim that whenever there is not enough of some good to go round, no agent has any claim to it. But that looks false.¹⁷

Another way we might read the objection is as an objection about opportunity costs. The worry is that when we endorse a robust right to petition, public officials would be bound to spend all their time listening to citizens’ various grievances, time they might have better spent realising other benefits – benefits that citizens have greater reason to value. However, it is not clear how this argument is supposed to work. The question of how duty-bearers ought to arbitrate between the multiple claims of multiple agents is a question of justice. It is the question that our principles of justice are designed to answer. If justice requires, therefore, that public officials ought to spend their time fulfilling duties other than their duties under citizens’ rights to petition, then it is unclear on what grounds our interlocutor is asserting that, when we endorse a robust right to petition, public officials ‘would be bound to spend all their time listening to citizens’ various grievances’. In such a case, they would not be so bound: justice would require them to fulfil other duties. If, on the other hand, it was not a requirement of justice that public officials spend their time fulfilling duties other than their duties under citizens’ rights to petition, then it is unclear in what sense our interlocutor is asserting that ‘they might have better spent their time realising other benefits’.

From here then, we can see that recognition of a robust rights to petition is not infeasible. Accepted, it requires public officials to make hard choices about how to adjudicate between the various duties they owe correlate with such a right, given multiple rights-holders and their multiple rights. But that is precisely the same situation they already find themselves in with regards to numerous other rights citizens possess, including, say, their right to health, or to a fair trial, or to vote. Presumably we do not think those rights are infeasible simply by virtue of the fact that our recognising them generates these kinds of hard choices. Nor should we a robust right to petition.¹⁸

Before moving on, let me consider another counter which might again be bracketed under broad questions of ‘feasibility’. One worry some might have about the argument offered in this article relates to questions of enforcement. If citizens possess a robust right to petition, how might we ensure public officials abide by their duties correlate with that right? There are two potential counters here. First, some might argue that there simply are no feasible mechanisms available. Second, some might argue that, even if there are, any mechanism will necessarily involve invasive monitoring of public officials’ decision-making processes – thereby putting the Robust View at a distinct disadvantage, as compared with Minimalism.¹⁹

Clearly this is not an article about institutional design. However, it is not clear to me that enforcement of a robust right to petition is either infeasible or would necessarily involve ‘invasive’ monitoring of public officials’ decision-making processes. As above, there are really two relevant duties here: first, that public officials provide a forum within which it would be possible for petitioners to present an actionable case; and second, that public officials make decisions in light of petitioners’ petitions (i.e. if some petitioner presents a bona fide consideration in favour of φ-ing, then they consider it a consideration in favour of φ-ing – unless, that is, they have salient countervailing reasons). Yet, in both cases, we might think that compliance can be enforced through a range of existing mechanisms without invasive monitoring of public officials’ decision-making processes. One model here, for example, might be to institute a system similar to judicial review in the United Kingdom. As in judicial review, there would be no requirement that courts reconsider the merits of executive action. Rather, judges would only be required to rule upon the way certain decisions were reached: did public officials abide by their suasive duties? One question will be about the space that they allowed for petitioners: did they provide a forum – be it a town hall meeting, or constituency surgery, or even an open post box (requirements will differ from case to case) – within which it would be possible for petitioners to present an actionable case? A second question will be about the quality of their decisions subsequent to petitioners’ petitions: did they make decisions in a way that was properly responsive to the petitions petitioners made?

At this point, some might worry that, in requiring courts to rule on the latter sort of question, such mechanisms would force judges to operate outside their normal constitutional role. However, within judicial review in the United Kingdom, judges are already asked to adjudicate on the irrationality of administrative decisions. In making such judgements, courts have asked themselves whether such decisions are

so outrageous in its defiance of logic and accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. (Lord Diplock in Council of Civil Service Unions and Others v Minister for the Civil Service (GCHQ), 1985: 410)

Or, reflective of

a pattern of perversity or absurdity of such proportions that the guidance could not have been framed by a bona fide exercise of political judgment on the part of the Secretary of State. (Lord Scarman in the House of Lords in Nottinghamshire County Council v Secretary of State for the Environment, 1986: 248)

Similar tests might be applied to courts’ judgements of the extent to which public officials’ have upheld their duty to make decisions in light of petitioners’ petitions, and at no greater level of invasion.²⁰

The objection from sufficient opportunities

Another way in which some might be inclined to reject the argument above is on the grounds that it fails to recognise all those opportunities citizens’ already have to take part in, and determine the outcome of, political decisions. In many polities, for example, citizens might enjoy such opportunities by virtue of their democratic rights. Then again, they might also enjoy such opportunities by virtue of various consultative activities. Where this is true, some might argue, citizens already possess all the opportunities to influence political outcomes they need, so the Objection from Less Extensive Opportunities against the Minimalist View fails to obtain.

Interestingly, this is an argument that many governments make when seeking to defend minimalist interpretations of the right to petition.²¹ However, I do not find it terribly persuasive. To begin with, the sense of sufficiency that this argument appeals to is obscure. However, even on a surface reading, it is not clear that democratic and consultative processes do offer citizens ‘sufficient’ opportunities to take part in, and determine the outcome of, political decisions.

First, consider democratic processes. Let us say that, following Christiano (2018), by democratic processes we can understand any group decision-making process characterised by a kind of equality among the participants at an essential stage of the collective decision making. Here we can readily concede that democratic processes offer some opportunities for citizens to realise their political goals. However, it is not clear that they offer a sufficient opportunity. For example, one problem with purely democratic systems is that they do not allow citizens any means of redress between elections. Rather, each citizen is forced to watch the board play out as it is set.²²

Then again, consider consultative processes. Let us say here that, following Goodin (2003), by consultative processes we can understand various measures by which the state invites the public to participate in the formation of policy. Again, here we might readily concede that consultative processes offer some opportunities for citizens to realise their political goals. However, again, it is not clear that they offer a sufficient opportunity. For example, purely consultative systems fail to grant citizens control over whose voice is heard, the terms of the relevant consultation and, importantly, which policy decisions are open to deliberation. Rather, those decisions always remain with the state.²³

Thus, even where citizens already enjoy democratic rights, and even where the state has already set up various consultative activities, citizens can still reject the Minimalist view in favour of the Robust View on the grounds the latter does better than the former with regards to the Objection from Less Extensive Opportunities.

The objection from inclusivity

Let us consider one last counter. One concern some might raise with regards to the foregoing analysis is that it is too inclusive: it justifies citizens’ rights to petition in at least some cases where we might not want such rights recognised. One pertinent set of cases here might be those in which companies petition for changes to legislation. Another might be where citizens use their right to press for special private interests, as opposed to the common good. Compare, for example, two petitions drafted by J.S. Mill for presentation to the House of Commons during his parliamentary career: one, in 1866, which demanded amending the Reform Act to extend the franchise to otherwise qualified women (HC Debate, 1866, vol 184 col 996–968); and another, in 1858, defending the interests of the East India Company (HC Debate, 1858, vol. 148, col. 970–976).²⁴

Again, I do not find this challenge terribly persuasive. In the case of companies petitioning for changes to legislation – or, to use the more common phrase, ‘lobbying’ – it is not clear to me that the present account does defend the rights of companies to engage in such activities. In this article, I have claimed citizens enjoy a robust right to petition. However, it is not clear to me that corporations are moral agents, let alone citizens.²⁵

This, then, leaves those cases where citizens use their right to press for special private interests – such as Mill's petition defending the interests of the East India Company. However, here I find myself pretty happy to bite the bullet. First, it is not clear to me that there is a strong, practical distinction we can draw between petitioning for special private interests and petitioning for the common good. (Indeed, here we might note that historians continue to debate which of these ways constitute the best interpretation of Mill's 1858 petition – Peers, 1999.) Moreover, it also seems to me that our objection to private interest petitioning, where we have one, is not primarily an objection to citizens having the right to make these kinds of arguments, rather, it is to public officials endorsing them. From here, then, we might think that we do best when we understand the problem of private interest lobbying as just another way in which citizens might occasionally use their rights to petition to press for demands that are bad and wrong. However, that problem is a problem about how we can design suasive decision-making processes in such a way as to make them as safe as possible. As Mill himself might put it, how we can ensure public officials are not captured by ‘sinister interests’ (Mill, 1998: 292). It is not grounds for thinking that citizens have no robust right to petition.

Conclusion

What constitutes the content of citizens’ rights to petition? And upon what grounds are such rights asserted? Such questions remain strangely neglected within political theory. Yet, these are questions upon which philosophers ought to have something to say. Both citizens and public officials need to know what duties are correlate with these kinds of rights and why. Where they do not, the risk of injustice increases.

In this article, I have sought to address this lacuna. In particular, I have pushed back on a prevalent, somewhat sceptical view according to which, if citizens have a right to petition, it is one that extends only as far as their rights to free speech. Instead, I have claimed that such a right secures not only a duty on public officials to refrain from interfering in P's efforts to express themselves but also to engage in a suasive decision-making process with regards to P's petitions; that is, to grant P a hearing and to undertake to make any subsequent decisions in light of the petitions P has made.

Given the confines of space, there are many questions that this article has not been able to address. For example, one thing that we have not discussed here are the duties of petitioners, with regards to making petitions to public officials. Here we might note that, simply because P has a right to petition does not mean that they have a reason to do so. Indeed, in some cases, it may be that P has good reason not to exercise their right to petition. One case here might be when they wish to persuade a public official to endorse a goal that is bad and wrong. However, more complicated cases are those in which citizens have good grounds to think that others have more pressing petitions. Here we can ask: given the limited time public officials can allocate to public hearings, do citizens have a duty to restrict their petitioning to only those causes that require the most urgent redress? We might also ask whether there are certain duties regarding how citizens make petitions. For example, do they have a duty not to use ‘vituperative language’ when making petitions, as Mill (1998: ch. 2) thought?

On another note: this article has largely assumed that the duty on public officials to engage with citizens’ petitions is not determined by the content of the petition itself. However, is that right? Are there some petitions that merit a hearing and others that do not?

There is also a question as to how far this argument generalises. In this article, I have restricted the scope of my analysis to citizens’ rights to petition. However, we might also ask whether the same arguments may be used to defend non-citizens rights to petition public officials. Or, then again, say, an employee's right to petition their employer.

Unfortunately, these questions lie beyond the scope of this article. However, my hope is that by providing a defence of a robust right to petition, this article has at least encouraged theorists to think that they are questions worth taking seriously.

Footnotes

Acknowledgements

Many heartfelt thanks to Albert Weale, James Wilson, Han van Wietmarschen, Chris Woodard, Joe Cunningham, Bob Goodin, the Editors at Politics, Philosophy and Economics and two anonymous reviewers for their many and varied contributions in the writing of this article. It has benefited hugely from their input.

Declaration of conflicting interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was funded through a Wellcome Trust Society and Ethics Research Fellowship (200384/Z/15/Z).

ORCID iD

Benedict Rumbold

Notes

Author biography

Benedict Rumbold is an Assistant Professor in the Department of Philosophy at the University of Nottingham. Benedict's research interests lie in normative ethics, political philosophy, the history of philosophy and applied philosophy.

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