Some time ago, as part of a discussion the details of which now escape me, TR Young (I think) asked me to post my thoughts on why democracy does not need justification. I said I was working on a paper that addressed that question, and the relevant section is now polished enough to be suitable, as MAD Magazine used to say, for wrapping fish. The rest of the paper is about pretty technical stuff in legal philosophy concerbing a doctrine called legal positivism. If anyone wants to see the whole thing when I have a polished draft, email me offline. If this is of no interest to anyone anymore, ignore it, but, TR, here it is. I have not here provided the bibliographical references, I will on request. I am sure that have offended our anarchist friends by reading them off the map, but they haven't been around much anyone lately. The excerpt here will confirm everyone's suspicions about what someone here recently called my fundamental conservatism. Comments are welcome of course.
jks
B. Democracy without Foundations
What we might call the condition of Democratic Legitimacy, that the legitimacy of law depends on democracy, is virtually axiomatic today in the western world. It is hard to think of any defense of this principle that would be less controversial than the proposition for which it is offered. As Richard Rorty has argued, democracy is “prior[ to] philosophy” (1991, 175). Rorty contends that while liberal democracy “may need philosophical articulation, it does not need philosophical backup”; we may develop philosophical ideals such as theories of the self that “comport[] with the institutions [we] admire[]. But [in so doing we are] not thereby justifying those institutions by reference to more fundamental premises, but . . . putting politics first and tailoring a philosophy to suit” (id., 178). I am not sure that this is inconsistent with the notion of justification articulated by John Rawls as process of attaining reflective equilibrium, attempting to go back and forth between considered judgments and principles from which we derive them until “our principles and judgments coincide” and we know “to what principles our judgments conform and the grounds of their derivation” (1971, 20).
Rorty, however, speaks approvingly of Rawls’ approach (1991, 180), so perhaps what Rorty rejects is a strong notion of philosophical justification of the sort that would imply that if no adequate justifying theory could be found for democracy, we should feel impelled to abandon it. Rorty adopts Rawls’ useful explanation of his own refusal to offer a general moral justification of democracy (id.).
Rawls insists that democracy is a political and not a moral conception: [A]s a practical political matter, no general moral conception [such as utilitarianism or Rawls’ own Justice as Fairness] can provide a publically recognized basis for a conception of justice in a modern democratic state. The social and historical conditions have their origins in the Wars of Religion following the Reformation and the subsequent development of the principle of toleration, and in the growth of constitutional government and the institutions of large industrial market economies (1999, 390). As Rorty puts it, “when deliberating about public policy and constructing political institutions, . . . [we] need to bracket many standard topics of philosophical discussion . . . [as] irrelevant to politics” (1991, 179-80). We need no more decide between a utilitarian or a Kantian moral basis for democracy than we must—or should—for political purposes take a position on the nature of the Trinity (id.). Instead we acknowledge the reality of fundamental disagreement on such topics as a given, and take the task for political philosophy to be the identification of an “underlying basis of agreement and . . . a mutually acceptable way of resolving these questions”; or at least the narrowing of “the divergence of opinion . . . sufficiently so that political cooperation on a basis of mutual respect can still be maintained” (Rawls 1999, 391, see 1971, 582-83). “No political view that depends on . . . deep and unresolved questions can serve as a public conception of justice in a constitutional democratic state” (Rawls 1999, 395). The suggestion is that a commitment to democratic values as the basis of agreement and to democratic procedures as the mutually acceptable way of resolving our differences is the lowest common denominator, the sine qua non of political cooperation on a basis of mutual respect. Above that, too little is shared; below that we decline to descend; beyond that, not much is to be said from a political point of view.
Rawls’ own notion of a “political conception” is both too vague and too rich for my purposes, tied expressly as it is to “the public political culture of a constititional democracy” (1993, 13; see also 1999, 390). Moreover, Rawls characterizes his own political conception as a “moral conception” though one worked out for “a specific kind of subject, namely or political, social, and economic institutions. . . . [in a] constitutional democracy” (1993, 11),. Our own conception of politics is democratic, but I do not mean to suggest that politics is necessarily democratic, on the contrary. And I would insist that a political conception is not necessarily a moral one, that is, one involving moral commitments, although it may and normally will do so. The perspective of morality is universal, that of politics parochial, claiming to bind only those who are in some sense members of the political community. Moreover, in one sense, morality typically claims a wider reach, reaching the conscience and the attitudes, which can be ethically appraised apart from conduct, whereas law and politics is concerned centrally with external behavior, even when it implicates mental states; and in another sense morality is narrower, since a good deal of politics is concerned with practical choices of means without significant ethical implications (shall we drive on the right or the left?), or where there are no great differences in the ethical implications even in choices of ends (shall we build schools or hospitals?). Political choices depend on bargaining, balancing competing interests, and pragmatic concerns at a much lower and more specific level than moral choices. Even within the framework of a democratic politics, vital choices such as which variant of majority rule to adopt (winner take all versus proportional representation, simple majorities versus supermajorities, etc.) may turn on matters of practicality having nothing to do with morality. Even choices that are in some sense morally charged, such as that between a parliamentary and a constitutional regime, may not be subject in the end to any obvious global moral evaluation. Is the American constitutional system better or worse than a European parliamentary one? In practice, it seems that they merely different. Political legitimacy has a moral dimension, but it is not the same thing.
Democracy, fortunately, does not need philosophical warrant. The justification of democracy in moral terms is of course a worthwhile and interesting enterprise. Below I indicate a defense that I think is fairly banal and commonsensical, though I think one perfectly adequate for the purpose to hand [NB, not exerpted here; it's that democracy is the fairest means of getting generally acceptable decisions]. Insofar as we we set aside politics for philosophy, we will want to say more. If we want our commitment to democracy to be in reflective equilibrium in theory as well as in practice, we will engage in democratic political theory. Theoretical reflective equilibrium, however, is not a condition of politics. Attempts to attain it in a philosophical vein may indeed have beneficial political consequences. Such engagement may refine our understanding of democracy, as in the thinking through the disagreements between democratic elitism (see, e.g., Schumpeter 1942), and more participatory conceptions (see, e.g., Pateman 1970). It may even lead us to propose particular changes or extensions of the scope of democratic institutions, as, for example, with Waldron’s (1999a, 283-312) criticism or Dworkin’s (1985, 1996) defenses of judicial review. It might even lead us to advocate very radical changes in our polity, as with Walzer’s (1983) case for economic democracy. But, as Rorty contends, democratic theory is an elaboration of, not a foundation for, democracy. Democracy is the framework in which deliberation takes place, something reflecting the fact that we “start[] within a certain political tradition,” (Rawls 1999, 390), not something we might choose to set aside if the arguments failed to convince. We may learn from anti-democrats like Nietzsche (1968), Carl Schmitt (1976), and Leo Strauss (1953), but we are not about to adopt their proposals.
Therefore, I simply appeal here to the reader’s own sense of political legitimacy, and I submit that the exclusive correctness of democratic values is not merely an uncontentious position in the West, but a view we hold to be one about which there can be no reasonable difference of opinion. It is a “provisionally fixed point[] which we presume any conception of justice [or political morality] must meet” (Rawls 1971, 20). It is, moreover, deeply entrenched and highly nonrevisable, as deeply rooted as our belief that the earth is round or that freedom is better than slavery. In principle we might give it up, but we cannot now imagine anything that would make us do it.
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