Proceduralism reconceived: Political conflict resolution under conditions of moral pluralism

Theory and Society

Volumn 31, Issue 6, 2002, Pages 741-776

  Gregg, Benjamin ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

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[No Author keywords available]

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EID: 0036449162     PISSN: 03042421     EISSN: None     Source Type: Journal    
DOI: 10.1023/A:1021335112103     Document Type: Review

References (80)

1. This claim is not necessarily to support a proceduralism conducted with no regard to any concerns (such as outcome) other than the formal procedure itself. I develop this point in later pages.
2. Benjamin Gregg, Coping in Politics with Indeterminate Norms: A Theory of Enlightened Localism (Albany: SUNY Press, 2003), chapter 2.
3. As procedures by which conflicts may be settled, Brian Barry, Political Argument (London: Routledge and Kegan Paul, 1970), 85-91, distinguishes combat, bargaining, discussion on merits, voting, chance, contest, and authoritative determination.
4. David Estlund, "Beyond Fairness and Deliberation: The Epistemic Dimension of Democratic Authority," in James Bohman and William Rehg, editors, Deliberative Democracy: Essays on Reason and Politics (Cambridge: MIT Press, 1997); Allan Gibbard, "Morality as Consistency in Living: Korsgaard's Kantian Lectures," Ethics 110 (1999); Alex Honneth, "Democracy as Reflexive Cooperation: John Dewey and the Theory of Democracy Today," Political Theory 26 (1998); Lenore Langsdorf and Darrin Hicks, "Regulating Disagreement, Constituting Participants: A Critique of Proceduralist Theories of Democracy," Argumentation 13 (1999); Michel Rosenfeld, "A Pluralist Critique of Contractarian Proceduralism," Ratio Juris 11 (1998).
5. David Estlund, "Beyond Fairness and Deliberation: The Epistemic Dimension of Democratic Authority," in James Bohman and William Rehg, editors, Deliberative Democracy: Essays on Reason and Politics (Cambridge: MIT Press, 1997); Allan Gibbard, "Morality as Consistency in Living: Korsgaard's Kantian Lectures," Ethics 110 (1999); Alex Honneth, "Democracy as Reflexive Cooperation: John Dewey and the Theory of Democracy Today," Political Theory 26 (1998); Lenore Langsdorf and Darrin Hicks, "Regulating Disagreement, Constituting Participants: A Critique of Proceduralist Theories of Democracy," Argumentation 13 (1999); Michel Rosenfeld, "A Pluralist Critique of Contractarian Proceduralism," Ratio Juris 11 (1998).
6. David Estlund, "Beyond Fairness and Deliberation: The Epistemic Dimension of Democratic Authority," in James Bohman and William Rehg, editors, Deliberative Democracy: Essays on Reason and Politics (Cambridge: MIT Press, 1997); Allan Gibbard, "Morality as Consistency in Living: Korsgaard's Kantian Lectures," Ethics 110 (1999); Alex Honneth, "Democracy as Reflexive Cooperation: John Dewey and the Theory of Democracy Today," Political Theory 26 (1998); Lenore Langsdorf and Darrin Hicks, "Regulating Disagreement, Constituting Participants: A Critique of Proceduralist Theories of Democracy," Argumentation 13 (1999); Michel Rosenfeld, "A Pluralist Critique of Contractarian Proceduralism," Ratio Juris 11 (1998).
7. David Estlund, "Beyond Fairness and Deliberation: The Epistemic Dimension of Democratic Authority," in James Bohman and William Rehg, editors, Deliberative Democracy: Essays on Reason and Politics (Cambridge: MIT Press, 1997); Allan Gibbard, "Morality as Consistency in Living: Korsgaard's Kantian Lectures," Ethics 110 (1999); Alex Honneth, "Democracy as Reflexive Cooperation: John Dewey and the Theory of Democracy Today," Political Theory 26 (1998); Lenore Langsdorf and Darrin Hicks, "Regulating Disagreement, Constituting Participants: A Critique of Proceduralist Theories of Democracy," Argumentation 13 (1999); Michel Rosenfeld, "A Pluralist Critique of Contractarian Proceduralism," Ratio Juris 11 (1998).
8. David Estlund, "Beyond Fairness and Deliberation: The Epistemic Dimension of Democratic Authority," in James Bohman and William Rehg, editors, Deliberative Democracy: Essays on Reason and Politics (Cambridge: MIT Press, 1997); Allan Gibbard, "Morality as Consistency in Living: Korsgaard's Kantian Lectures," Ethics 110 (1999); Alex Honneth, "Democracy as Reflexive Cooperation: John Dewey and the Theory of Democracy Today," Political Theory 26 (1998); Lenore Langsdorf and Darrin Hicks, "Regulating Disagreement, Constituting Participants: A Critique of Proceduralist Theories of Democracy," Argumentation 13 (1999); Michel Rosenfeld, "A Pluralist Critique of Contractarian Proceduralism," Ratio Juris 11 (1998).
9. Joshua Cohen, "Pluralism and Proceduralism," Chicago-Kent Law Review 69 (1994): 610.
10. John Rawls, Political Liberalism (New York: Columbia University Press, 1993),159.
11. Jürgen Habermas, Between Facts and Norms Contributions to a Discourse Theory of Law and Democracy (Cambridge: MIT Press, 1996), 296.
12. Thomas Hobbes, Leviathan (London: Penguin Books, 1985 [1651]), chapter 14.
13. Stuart Hampshire, Justice is Conflict (Princeton: Princeton University Press, 2000), 23-24.
14. Immanuel Kant, Critique of Practical Reason, trans. Mary Gregor (Cambridge: Cambridge University Press, 1997 [1788]).
15. In Thick Morality, Thin Politics: Social Integration Across Communities of Belief and Identity (Durham: Duke University Press, 2003), I develop into a general social theory this distinction between thick and thin normativity.
16. Jane Mansbridge, "Feminism and Democratic Community," in John Chapman and Ian Shapiro, editors, Democratic Community (New York: New York University Press, 1993), 340.
17. Amitai Etzioni, The New Golden Rule (New York: Basic Books, 1996),127.
18. Cohen, "Pluralism and Proceduralism," 603.
19. Michel Rosenfeld, "Can Rights, Democracy, and Justice Be Reconciled Through Discourse Theory?" Cardozo Law Review 17 (1996): 812.
20. Jürgen Habermas, Moral Consciousness and Communicative Action (Cambridge: MIT Press, 1990), 211.
21. John Rawls, "Justice as Fairness," in Peter Laslett and W. G. Runciman, editors, Philosophy, Politics, and Society, second series (Oxford: Blackwell, 1962), 148.
22. Ibid., 139.
23. I b i d.
24. I b i d.
25. In Coping in Politics with Indeterminate Norms, I develop a general social theory of coping in politics with indeterminate norms by resort to an "enlightened" (rather than parochial) form of localism.
26. David Hume, A Treatise of Human Nature (Oxford: Clarendon Press, 1975 [1737]).
27. Hampshire, Justice is Conflict, 37.
28. Anthony Wallace, Culture and Personality, second edition (New York: Random House, 1970), 35.
29. Jorgen Nielsen, Towards a European Islam (London: Macmillan, 1999), 88. According to Steven Vertovec and Ceri Peach, "Introduction: Islam in Europe and the Politics of Religion and Community," in Steven Vertovec and Ceri Peach, editors, Islam in Europe: The Politics of Religion and Community (London: Macmillan, 1997), 37-38, something like 60 percent of Muslims in Europe identify as Muslims without being particularly observant; roughly 20 percent practice their religion privately; and only the remainder engage in collective forms of observance as well as in proselytizing.
30. Jorgen Nielsen, Towards a European Islam (London: Macmillan, 1999), 88. According to Steven Vertovec and Ceri Peach, "Introduction: Islam in Europe and the Politics of Religion and Community," in Steven Vertovec and Ceri Peach, editors, Islam in Europe: The Politics of Religion and Community (London: Macmillan, 1997), 37-38, something like 60 percent of Muslims in Europe identify as Muslims without being particularly observant; roughly 20 percent practice their religion privately; and only the remainder engage in collective forms of observance as well as in proselytizing.
31. Nielsen, Towards a European Islam, 82.
32. Phnina Werbner, "Gender, Feminism and Aspects of British Muslim Participation in the Public Sphere," in W. A. R. Shadid and P. S. Van Koningsveld, editors, Political Participation and Identities of Muslims in Non-Muslim States (Kampen, NL: Kok Pharos Publishing House, 1996), 64.
33. Yet even here protesters might break from proceduralism only temporarily, as they ask the majority to reconsider an issue of principle - such as which constraints should apply to the procedure or to any of its possible outcomes - and perhaps then return to proceduralism. In this sense, Martin Luther King, "Letter from Birmingham City Jail," in A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr., ed. James Washington (New York: Harper-Collins, 1986), 294, wrote from the Birmingham City Jail that "an individual who breaks a law that conscience tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law." As examples of unjust laws, King mentions a "code that a majority inflicts on a minority that is not binding on itself" and one "inflicted upon a minority which that minority had no part in enacting or creating because [it] did not have the unhampered right to vote" (ibid.).
34. Sometimes there may be tradeoffs between increasing the deliberativeness of a procedure and minimizing divisive controversy. If people voted without much prior public discussion about the grounds for everyone's votes, the losers might accept the results, but once deliberation revealed that the majority was voting for rule X because rule X would hurt no one's interests except those of the adherents of a worldview too "absurd" to be credible, the losers might balk at the rule. But minimizing divisive controversy in this spirit of "ignorance is bliss" is counter-democratic in the sense of manipulating parts of the populace by maintaining their ignorance.
35. By comparison, Brian Barry, "Is Democracy Special?" in Peter Laslett and James Fishkin, editors, Philosophy, Politics and Society, fifth series (New Haven: Yale University Press, 1979), 156-157, proposes a proceduralism too thin: "I reject the notion that one should build into 'democracy' any constraints on the content of the outcomes produced, such as substantive equality, respect for human rights, concern for the general welfare, personal liberty or the rule of law. The only exceptions ... are those required by democracy itself as a procedure. Thus, some degree of freedom of communication and organization is a necessary condition of the formation, expression and aggregation of political preferences. And in a state (as against a small commune, say) the only preferences people can have are preferences for general lines of policy."
36. Vertovec and Peach, "Introduction: Islam in Europe and the Politics of Religion and Community," 26.
37. Ahmed Andrews, "Muslim Attitudes Towards Political Activity in the United Kingdom: A Case Study of Leicester," in W. A. R. Shadid and P. S. Van Koningsveld, editors, Political Participation and Identities of Muslims in Non-Muslim States (Kampen, NL: Kok Pharos Publishing House, 1996), 128.
38. Yet without proportional representation, Muslims and Hindus in Britain today are not electable to the "national parliament on the basis of attachment to a purely religious party," and "although the major parties encourage Hindus and Muslims to come forward as candidates in local government elections," neither the Labour nor the Conservative Party is inclined to "encourage candidates from these communities to come forward as prospective members of parliament" (Andrews, "Muslim Attitudes Towards Political Activity in the United Kingdom," 128).
39. Although residual institutionalized racism persists: the "Labour Party leadership does not want to be seen to have too many Muslim members. This relates more generally to a view of Muslims as an electoral liability and the fear that Labour will lose white votes" (Kingsley Purdam, "Settler Political Participation: Muslim Local Councillors," in W. A. R. Shadid and P. S. Van Koningsveld, editors, Political Participation and Identities of Muslims in Non-Muslim States (Kampen, NL: Kok Pharos Publishing House, 1996), 139).
40. A collective identity is not an individual identity writ large but a fabric into which the individual's identity is woven (unevenly, to be sure). By "fabric" I refer to the contexts in which people were socialized, where they formed their basic identities. In liberal democracies these contexts are connected with the public, political context in which they have legal rights to equal treatment. A. Honneth, The Fragmented World of the Social: Essays in Social and Political Philosophy (Albany: SUNY Press, 1995), 254, identifies the role of recognition in collective identity, a form of recognition "invested with a primarily cognitive character: ego and alter mutually recognize each other as legal persons in that they share a knowledge of those norms by which their particular community secures the rights and responsibilities to which they are equally entitled," such that the individual can consider him- or herself a person who shares with all other members of [the] community the qualities of a morally accountable active subject."
41. See Goldman v. Weinberger (475 U.S. 503 (1986)).
42. See O'Lone v. Estate of Shabazz (482 U.S. 3342 (1987)).
43. Honneth, Fragmented World of the Social, 226.
44. See Wisconsin v. Yoder (406 U.S. 205 (1972)).
45. See Reynolds v. United States (98 U.S. 145 (1878)).
46. Although such a curriculum may well perpetuate a sexual division of the kind of skills learned, such that, unlike the women's education, the education men receive may still make them employable outside the Amish community, should a man decide to leave.
47. See, for example, Muhammad Salim, "Muslime in Deutschland. Geschichte und Herausforderungen," in Tilman Hannemann and Peter Meier-Hüsing, editors, Deutscher Islam-Islam in Deutschland (Marburg: Diagonal-Verlag, 2000), 52, who lists some of the main reasons.
48. Valérie Amiraux, "Turkish Islam in Germany Between Political Overdetermination and Cultural Affirmation," in W. A. R. Shadid and P. S. Van Koningsveld, editors, Political Participation and Identities of Muslims in Non-Muslim States (Kampen, NL: Kok Pharos Publishing House, 1996), 50.
49. Nielsen, Towards a European Islam, 34.
50. There are also limits to what might properly be bracketed. Of course, one would not "bracket" within one's normatively "thick" community, for instance, within a religious faith, a political party, or within intimate relationships such as the family. These are areas where agreement must often be found without proceduralism. Someone in significant disagreement with the community in question (including, poignantly, the family) likely would separate himself or herself from it, unless the membership were coerced or pathological. Further, one would not bracket outcomes that make impossible the satisfaction of the individual's basic needs of daily life (such as sustenance, hygiene, and protection from the elements and from other human beings), or that injures the participant in his or her humanity or dignity. Nor should "substantive" political rights be bracketed, rights such as freedom of speech and assembly, but above all: the citizen's right, individually and collectively, to political self-determination.
51. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), 87.
52. Valérie Amiraux, "Turkish Islamic Associations in Germany and the Issue of European Citizenship," in Steven Vertovec and Ceri Peach, editors, Islam in Europe: The Politics of Religion and Community (London: Macmillan, 1997), 254.
53. Honeth, Fragmented World of the Social, 251.
54. 121 S.Ct. 525.
55. The "majority in Bush v. Gore ... confused and improperly mingled the special and constrained form of politics called constitutional law with the more general and unconstrained forms of politics in partisan political struggle" (Jack Balkin, "Bush v. Gore and the Boundary Between Law and Politics," Yale Law Journal 110 (2001): 1548). "Given the opportunity to decide who would be President, the conservative Justices ... in the face of society's most pressing concerns and their own strongly held preferences ... might have passed" (Gary Rosen, "Reconsidering 'Bush v. Gore,'" Commentary 112 (2001): 42).
56. The "majority in Bush v. Gore ... confused and improperly mingled the special and constrained form of politics called constitutional law with the more general and unconstrained forms of politics in partisan political struggle" (Jack Balkin, "Bush v. Gore and the Boundary Between Law and Politics," Yale Law Journal 110 (2001): 1548). "Given the opportunity to decide who would be President, the conservative Justices ... in the face of society's most pressing concerns and their own strongly held preferences ... might have passed" (Gary Rosen, "Reconsidering 'Bush v. Gore,'" Commentary 112 (2001): 42).
57. A process is partisan when the authoritative "rule deciders decide the rules after matters have proceeded so far that the decision obviously determines an outcome to which the deciders are perceived to be not indifferent.... That majority intervened aggressively, decisively, and knowingly to resolve a presidential election in favor of the contestant who had named two of them as the judicial models by which he would select future justices" (Frank Michelman, "Bush v. Gore: Suspicion, or the New Prince," University of Chicago Law Review 68 (2001): 686-687).
58. The Court "effectively resolved the presidential election not unanimously, but by a 5-4 vote, with the majority consisting entirely of the Court's most conservative justices" (Cass Sunstein, "Bush v. Gore: Order Without Law," University of Chicago Law Review 68 (2001): 758). Beyond the Court, "some Republicans acknowledge (especially in private) that the Court's decision was bad law, but generally they are not unhappy with the result" (Michael Klarman, "Bush v. Gore Through the Lens of Constitutional History," California Law Review 89 (2001): 1761).
59. The Court "effectively resolved the presidential election not unanimously, but by a 5-4 vote, with the majority consisting entirely of the Court's most conservative justices" (Cass Sunstein, "Bush v. Gore: Order Without Law," University of Chicago Law Review 68 (2001): 758). Beyond the Court, "some Republicans acknowledge (especially in private) that the Court's decision was bad law, but generally they are not unhappy with the result" (Michael Klarman, "Bush v. Gore Through the Lens of Constitutional History," California Law Review 89 (2001): 1761).
60. The majority opinion announced an "hitherto undeclared and unsuspected doctrine of constitutional law, which it drew with a remarkable precision expressly meant to leave its authors unfettered in any future case" (Michelman, "Bush v. Gore: Suspicion, or the New Prince," 687).
61. Jacques Lenoble, "Law and Undecidability: A New Vision of the Proceduralization of Law," Cardozo Law Review 17 (1996): 943.
62. For the related but different proceduralism of deliberative polling, see James Fishkin, The Voice of the People: Public Opinion and Democracy (New Haven: Yale University Press, 1995).
63. Honneth, Fragmented World of the Social, 254-255.
64. Rémy Leveau, "The Political Culture of the 'Beurs,'" in Steven Vertovec and Ceri Peach, editors, Islam in Europe: The Politics of Religion and Community (London: Macmillan, 1997), 149.
65. James Fishkin, The Dialogue of Justice: Toward a Self-Reflective Society (New Haven: Yale University Press, 1992), 201-202.
66. I b i d.
67. Of course, the notion of "unmanipulated may itself be contested, but it is rationally contestable only from a standpoint itself claiming to be unmanipulated (which standpoint then provides the standard by which to identify manipulation).
68. Compare Clifford Geertz, Islam Observed: Religious Developments in Morocco and Indonesia (Chicago: University of Chicago Press, 1968), 61.
69. Vertovec and Peach, "Introduction: Islam in Europe and the Politics of Religion and Community," 40.
70. I b i d.
71. Hampshire, Justice is Conflict, 25.
72. Laïcité is not a secular fundamentalism where it is open to various accommodations of religious expression in public schools, such as dietary practices, leave for religious reasons, or the wearing of religious symbols: "la laïcité française apparaît comme un espace de négociation et de transaction et non un principe intangible, a-historique, comme le conçoivent certains militants laïques" (Bérengère Massignon, "Laïcité et gestion de la diversité religieuse à l'école publique en France," Social Compass 47 (2000): 362).
73. Jürgen Habermas, Justification and Application (Cambridge: MIT Press, 1993), 59.
74. The word jihād is the verbal noun of the Arabic verb jāhada, meaning to endeavor toward a praiseworthy aim. Its wide semantic spectrum reaches from the individual's moral struggle with himself or herself (in the sense of resisting one's moral weaknesses and the more wicked aspects of one's environment); to efforts directed at the moral betterment of the Islamic community (the meaning I invoked earlier, in the context of interpretation or independent judgment); to efforts directed as the spread of Islam (the meaning I employ now, in the sense of attempts to convert unbelievers). Struggle against self is the "greater jihād," whereas struggle against others is the "lesser jihād" and is itself further differentiated. Surah 16: 125 of the Qur'ān ("Call thou to the way of the Lord with wisdom and admonition, and dispute with them in the better way") suggests a "jihād of the tongue or pen," whereas surah 2: 93 ("Fight them until there is no persecution and the religion is God's; then if they give over, there shall be no enmity save for evildoers") implies a "jihād of the sword." These distinctions become more complicated still in contemporary debates among Islamic modernists (who interpret the "lesser jihād" as defensive warfare), Islamic conservatives (who support the position of the classical legal texts), and fundamentalists or revivalists (for whom the "lesser jihād" entails islamizing all of state and society and, beyond that, bringing the entire world into line with Islamic principles). Compare Rudolph Peters, Islam Colonialism The Doctrine of Jihad in Modern History (The Hague, NL: Mouton, 1979), chapter 4; and Rudolph Peters, Jihad in Classical and Modern Islam (Princeton: Markus Wiener Publishers, 1996), chapter 8.
75. The word jihād is the verbal noun of the Arabic verb jāhada, meaning to endeavor toward a praiseworthy aim. Its wide semantic spectrum reaches from the individual's moral struggle with himself or herself (in the sense of resisting one's moral weaknesses and the more wicked aspects of one's environment); to efforts directed at the moral betterment of the Islamic community (the meaning I invoked earlier, in the context of interpretation or independent judgment); to efforts directed as the spread of Islam (the meaning I employ now, in the sense of attempts to convert unbelievers). Struggle against self is the "greater jihād," whereas struggle against others is the "lesser jihād" and is itself further differentiated. Surah 16: 125 of the Qur'ān ("Call thou to the way of the Lord with wisdom and admonition, and dispute with them in the better way") suggests a "jihād of the tongue or pen," whereas surah 2: 93 ("Fight them until there is no persecution and the religion is God's; then if they give over, there shall be no enmity save for evildoers") implies a "jihād of the sword." These distinctions become more complicated still in contemporary debates among Islamic modernists (who interpret the "lesser jihād" as defensive warfare), Islamic conservatives (who support the position of the classical legal texts), and fundamentalists or revivalists (for whom the "lesser jihād" entails islamizing all of state and society and, beyond that, bringing the entire world into line with Islamic principles). Compare Rudolph Peters, Islam Colonialism The Doctrine of Jihad in Modern History (The Hague, NL: Mouton, 1979), chapter 4; and Rudolph Peters, Jihad in Classical and Modern Islam (Princeton: Markus Wiener Publishers, 1996), chapter 8.
76. Nielsen, Towards a European Islam, 31-32.
77. Donald Horowitz, Ethnic Groups in Conflict (Berkeley: University of California Press, 1985), 50.
78. Lina Molokotos Liederman, "Religious Diversity in Schools: the Muslim Headscarf Controversy and Beyond," Social Compass 47 (2000): 368.
79. Compare John Esposito, The Islamic Threat: Myth or Reality? (New York: Oxford University Press, 1999), chapter 6.
80. Hampshire, Justice is Conflict, 38-39.