Why deliberative democracy?

Why Deliberative Democracy?

Volumn , Issue , 2009, Pages

  Gutmann, Amy ^a   Thompson, Dennis ^a  

^a NONE

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References (205)

1. Iraq War Debates 2002-03, University of Michigan Document Center http://www.lib.umich.edu/govdocs/ iraqwar.html. Two of President Bush's key speeches were: "President Bush Outlines Iraqi Threat," 7 October 2002,
2. The White House, http://www.whitehouse.gov/news/releases/2002/10/20021007-8.html "President Delivers The State of the Union," 28 January 2003, http://www.whitehouse.gov/news/releases/2003/01/20030128-19.html.
3. A critic's speech, Senator Robert C. Byrd, "Rush to War Ignores the U.S. Constitution," 3 October 2002, http://byrd.senate.gov/byrd_newsroom/byrd_news_oct2002/ rls_oct2002/rls_oct2002_2.html [accessed 4 January 2004].
4. Jean-Jacques Rousseau, Du contrat social, in Political Writings, vol. II, ed. C. E. Vaughan (Cambridge: Cambridge University Press, 1915), Bk. II, ch. 3; Bk. IV, ch. 1. Rousseau worried that if citizens were to come together in the assembly to discuss what the general will should be, they would be tempted to make compromises, and perhaps even form factions which by their nature do not express the general will. A modern, less extreme version of this view (which does not rule out public deliberation) is developed by Robert Goodin, who argues for what he calls "deliberation within," not because he fears factional politics but because he thinks any other kind of deliberation is impractical in large-scale democracies [Reflective Democracy (Oxford: Oxford University Press, 2003)].
5. Although this definition is intended to capture what we believe to be the essential characteristics of deliberative democracy, deliberative democrats disagree among themselves about many of its features.
6. For a recent sample of the disputes and other conceptions, see James Bohman and William Rehg, eds., Deliberative Democracy (Cambridge, Mass.: MIT Press, 1997)
7. Jon Elster, Deliberative Democracy (Cambridge: Cambridge University Press, 1998)
8. Stephen Macedo, ed., Deliberative Politics (Oxford: Oxford University Press, 1999)
9. John Dryzek, Deliberative Democracy and Beyond (Oxford: Oxford University Press, 2000)
10. David Estlund, ed., Democracy (Oxford: Blackwell, 2002)
11. Frank Cunningham, Theories of Democracy (London and New York: Routledge, 2002), pp. 163-83.
12. Thucydides, Peloponnesian War, S. Lattimore, trans. (Indianapolis: Hackett, 1998), II. 40.
13. Aristotle, Politics, in Complete Works, vol. II, J. Barnes, ed. (Princeton, N.J.: Princeton University Press, 1984), Bk. III.
14. Edmund Burke, Burke's Politics, R. Hoffman and P. Levack, eds. (New York: Knopf, 1959), p. 115.
15. Joseph Bessette, The Mild Voice of Reason: Deliberative Democracy and American National Government (Chicago: University of Chicago Press, 1994), p. 13.
16. John Stuart Mill, Considerations on Representative Government, in Collected Writings, vol. XIX, ed. J. M. Robson (Toronto: University of Toronto Press; London: Routledge & Keagan Paul, 1977), ch. XV. On Mill's "dialectical deliberation,"
17. Dennis F. Thompson, John Stuart Mill and Representative Government (Princeton, N.J.: Princeton University Press, 1976), pp. 80-82.
18. Dennis F. Thompson, The Democratic Citizen: Social Science and Democratic Theory in the Twentieth Century (Cambridge: Cambridge University Press, 1970), p. 86.
19. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, Mass.: MIT Press, 1996).
20. "Discourse Ethics," in Moral Consciousness and Communicative Action, trans. Christian Lenhardt and Shierry Weber Nicholsen (Cambridge, Mass.: MIT Press, 1993), p. 94.
21. Jefferson to Samuel Kercheval, 12 July 1816, in The Writings of Thomas Jefferson, vol. 15, p. 42
22. For an analysis of Jefferson's attitudes toward constitutional change.
23. John R. Vile, The Constitutional Amending Process in American Thought (New York: Praeger, 1992), pp. 59-78.
24. Joshua Cohen, Review of Robert Dahl's Democracy and Its Critics, in Journal of Politics 53 (February 1991), pp. 221-25
25. "Procedure and Substance in Deliberative Democracy," in S. Benhabib, ed., Democracy and Difference (Princeton, N.J.: Princeton University Press, 1996), pp. 95-119.
26. Jack Knight and James Johnson, "Aggregation and Deliberation: On the Possibility of Democratic Legitimacy," Political Theory 22 (May 1994), pp. 277-96.
27. In other writings we have emphasized the contrast between procedural and constitutional conceptions of democracy (see Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge, Mass.: Harvard University Press, 1996), pp. 27-39), which is the more general distinction applicable to all theories of democracy. It is useful to distinguish our version from others because some deliberative democrats, such as Habermas, are proceduralists, and some liberals who are inclined toward deliberative democracy are constitutionalists. But for the purpose of contrasting deliberative democracy with other conceptions, the distinction between deliberative and aggregative approaches is more relevant.
28. This disagreement is essentially the same as Rawls's "fact of reasonable pluralism".
29. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), pp. 36, 37, 63, 136, 141, 144, 152f, 216f; and Joshua Cohen, "Moral Pluralism and Political Consensus," in David Copp et al., eds., The Idea of Democracy (Cambridge: Cambridge University Press, 1993), pp. 270-91.
30. our discussion of the sources of moral disagreement in Gutmann and Thompson, Democracy and Disagreement, pp. 18-26.
31. A contemporary defense of majoritarianism, Jeremy Waldron, The Dignity of Legislation (Cambridge: Cambridge University Press, 1999), pp. 147-50.
32. On the limits of majority rule, Gutmann and Thompson, Democracy and Disagreement, pp. 27-33.
33. Joseph Schumpeter [Capitalism, Socialism and Democracy, 3d ed. (New York: Harper and Row, 1950), p. 269] is the seminal source in the contemporary literature. Anthony Downs gave the theory a more formal and systematic statement, and many political scientists have adopted it with major modifications, but still with enthusiasm.
34. An Economic Theory of Democracy (New York: Harper and Row, 1957).
35. Bernard Grofman, "Toward an Institution-Rich Theory of Political Competition," in Bernard Grofman, ed., Information, Participation, and Choice (Ann Arbor: University of Michigan Press, 1993), p. 193.
36. At least they do so if they can avoid the paradoxes and other technical problems identified by social-choice theorists.A survey of those problems and an argument showing how deliberative democrats can avoid the problems
37. David Miller, "Deliberative Democracy and Social Choice," in David Estlund, ed., Democracy (Oxford: Blackwell, 2002), pp. 289-307.
38. Gutmann and Thompson, Democracy and Disagreement, pp. 173-78.
39. David Estlund, "Beyond Fairness and Deliberation: The Epistemic Dimension of Democratic Authority," in J. Bohman and W. Rehg, eds., Deliberative Democracy (Cambridge, Mass.: MIT Press, 1997), pp. 173-204.
40. The expressivist approach is most often proposed as a way of understanding the act of voting, but it can be applied to political participation and the laws in general, and therefore to the deliberative process.
41. Elizabeth S. Anderson, Value in Ethics and Economics (Cambridge, Mass.: Harvard University Press, 1993)
42. Elizabeth S. Anderson and Richard H. Pildes, "Expressive Theories of Law: A General Restatement," University of Pennsylvania Law Review 148 (May 2000), pp. 1503-75.
43. Cass Sunstein, "Law, Economics and Norms: On the Expressive Function of Law," University of Pennsylvania Law Review 144 (May 1996), esp. pp. 2045-49
44. Robert Nozick, The Nature of Rationality (Princeton, N.J.: Princeton University Press, 1993), pp. 26-35.
45. Nozick, Philosophical Explanations (Cambridge, Mass.: Harvard University Press, 1981), pp. 370-80.
46. Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999), pp. 239-41
47. Charles R. Beitz, Political Equality: An Essay in Democratic Theory (Princeton, N.J.: Princeton University Press, 1989), pp. 93-95.
48. As Jürgen Habermas writes: "all contents, no matter how fundamental the action norm involved may be, must be made to depend on real discourses (or advocatory discourses conducted as substitutes for them)" ["Discourse Ethics," in Moral Consciousness and Communicative Action, trans. Christian Lenhardt and Shierry Weber Nicholsen (Cambridge, Mass.: MIT Press, 1993), p. 94].
49. Gutmann and Thompson, Democracy and Disagreement, pp. 17-18.
50. Jack Knight, "Constitutionalism and Deliberative Democracy," in Stephen Macedo, ed., Deliberative Politics (Oxford: Oxford University Press, 1999), pp. 159-69.
51. Cass Sunstein, "Agreement without Theory," in Macedo, pp. 147-48.
52. Iris Marion Young, "Justice, Inclusion, and Deliberative Democracy," in Macedo, pp. 151-58.
53. Gutmann and Thompson, "Democratic Disagreement," in Macedo, pp. 261-68.
54. Habermas, "Discourse Ethics," p. 261.
55. This can be seen most clearly in his discussion of neutrality: Political Liberalism (New York: Columbia University Press, 1993), pp. 190-95, esp. n24.
56. Michael Sandel, Democracy's Discontent (Cambridge Mass.: Harvard University Press, 1996).
57. Gutmann and Thompson, Democracy and Disagreement, pp. 18-26.
58. Deliberative disagreements are those in which citizens continue to differ about basic moral principles even though they seek a resolution that is mutually justifiable. The dispute over abortion is an example of a delibera- tive disagreement, because both sides can justify their views within a reciprocal perspective. A dispute about racial segregation is an example of a nondeliberative disagreement, because one side can be reasonably rejected within a reciprocal perspective.
59. Gutmann and Thompson, Democracy and Disagreement, pp. 2-3, 73-79.
60. Jason A. Beyer, "Public Dilemmas and Gay Marriage" Journal of Social Philosophy 33 (Spring 2002), no. 1, pp. 9-16.
61. Dryzek, Deliberative Democracy and Beyond, pp. 81-114.
62. Although Dryzek is primarily concerned to extend deliberative democracy to civil society, and although he does not deny the importance of representation, the institutions about which he is evidently most enthusiastic are robustly participatory. See also the participatory approach presented in the editors' introduction, and in most articles, in Archon Fung and Olin Wright, eds., Deepening Democracy (London and New York: Verso, 2003).
63. Joshua Cohen, "Deliberation and Democratic Legitimacy," in Estlund, ed., Democracy, pp. 101, and 106, n. 28.
64. Thomas E. Cronin, Direct Democracy: The Politics of Initiative, Referendum and Recall (Cambridge, Mass.: Harvard University Press, 1999), pp. 38-59.
65. James S. Fishkin, The Voice of the People: Public Opinion and Democracy (New Haven: Yale University Press, 1995).
66. Jürgen Habermas, "Deliberative Politics" in Estlund, ed., Democracy, pp. 114-15, 120-21.
67. Joshua Cohen, "Deliberation and Democratic Legitimacy," in Estlund, ed., Democracy, pp. 101-3.
68. Jane Mansbridge, "Everyday Talk in the Deliberative System," in Macedo, ed., Deliberative Politics, pp. 211-39.
69. Cohen, "Deliberation and Democratic Legitimacy," p. 102.
70. "Investors are seeking a new gold standard for corporate governance, and they are putting a lot of companies onto their post-Enron punch list," according to Patrick S. McGurn, senior vice president of Institutional Shareholder Services [quoted in Claudia H. Deutsch, "The Revolt of the Shareholders," New York Times, February 23, 2003, sec. 3, p. 1].
71. Amy Gutmann, Democratic Education (Princeton, N.J.: Princeton University Press, 1999), pp. 50-52, 292-303, and passim.
72. A skeptical view of the internet's potential to promote genuine deliberation, see Cass Sunstein, Democracy.com (Princeton, N.J.: Princeton University Press, 2002). A more optimistic view of the internet's potential with regard to deliberation can be found at http://www.stanford.edu/group/siqss/itandsociety/v01i01/v01i01a20.pdf [accessed 27 October 03].
73. "20 Most Popular Search Terms at 10 Leading Portals and Search Engines March 1999 to January 2001" ,(two-year study by Alexa Research), cited in Michael Pastore, "Search Engines, Browsers Still Confusing Many Web Users"
74. AT http://cyberatlas.internet.com/big_picture/traffic_patterns/article/0,,5931_588851,00.html [accessed 11 March 03].
75. Exceptions are John S. Dryzek, "Transnational Democracy," Journal of Political Philosophy 7 (1999), pp. 30-51.
76. Dennis F. Thompson, "Democratic Theory and Global Society," Journal of Political Philosophy 7 (1999), pp. 111-25.
77. Joseph Raz, "Disagreement in Politics," American Journal of Jurisprudence 43 (1998), pp. 25-52.
78. Stanley Fish, "Mutual Respect as a Device of Exclusion," in Macedo, ed., Deliberative Politics, pp. 88-102.
79. A more nuanced version of the power-oriented objection is Ian Shapiro, "Enough of Deliberation," also in Macedo, pp. 28-38.
80. The State of Democratic Theory (New Haven: Yale University Press, 2003), pp. 22-26.
81. The argument for such a commission is similar to the case for establishing independent bodies to carry out electoral redistricting, which in the United States suffers from some of the same problems.
82. Dennis F. Thompson, Just Elections (Chicago: Chicago University Press, 2002), pp. 173-79.
83. Lynn Sanders, "Against Deliberation," Political Theory 25:3 (1997), pp. 347-76.
84. http://bioethics.gov/reports/cloningreport/index.html [accessed 11 March 03].
85. Cass Sunstein, "The Law of Group Polarization," Journal of Political Philosophy 10 (2), p. 176.
86. Cass Sunstein, Why Societies Need More Dissent (Cambridge, Mass.: Harvard University Press, 2003),
87. James Fishkin and R. Luskin, "Bringing Deliberation to the Democratic Dialogue: the NIC and Beyond," in A Poll with a Human Face: the National Issues Convention Experiment in Political Communication, ed. M. McCombs and A. Reynolds (New York: Erlbaum, 1999), pp. 30-38.
88. Michael Walzer, "Deliberation, and What Else?" in Macedo, ed., p. 67.
89. We discuss this case at length in Democracy and Disagreement, but use it there for a somewhat different purpose: to explain the limits on the kinds of reasons that are appropriate in deliberation (pp. 63-69).
90. Mozert v. Hawkins County Bd. of Educ., 827 F. 2d 1058 (6th Cir. 1987), cert. denied, 484 U.S. 1066 (1988) at 1065.
91. William Galston, "Diversity, Toleration, and Deliberative Democracy," in Macedo, ed., pp. 39-48.
92. Galston, pp. 43-44.
93. Thompson, Just Elections, esp. pp. 138-39.
94. David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Stanford, Calif.: Stanford University Press, 1995), p. 237.
95. John Rawls, "Justice as Fairness: Political not Metaphysical," Philosophy and Public Affairs 14 (1985), pp. 248-51.
96. Thomas Nagel, "Moral Conflict and Political Legitimacy," Philosophy and Public Affairs 16 (1987), pp. 223-27
97. David A. J. Richards, Toleration and the Constitution (New York: Oxford University Press, 1986), pp. 67-162.
98. For a more thorough discussion of several relevant meanings of neutrality and their application to a procedural theory
99. John Rawls, "The Priority of the Right and Ideas of the Good," Philosophy and Public Affairs 17 (1988), pp. 260-64.
100. For a defense of neutrality in the justification of governmental policies, directed against communitarianism and perfectionism
101. Will Kymlicka, "Liberal Individualism and Liberal Neutrality," Ethics 99 (1989), pp. 883-905.
102. The argument we present is in its essentials found in Locke's A Letter Concerning Toleration, ed. James Tully (Indianapolis: Hackett, 1983), pp. 23-39. We call the argument Lockean, however, to indicate that we do not claim that every element of our reconstruction, especially our applications to contemporary problems, is precisely faithful to Locke's intention or even his text. Also, we ignore a number of arguments that were important for Locke and his contemporaries-e.g., the argument against tolerating atheists and Catholics. The claims that people who do not believe in God cannot be trusted to keep promises, and that people who owe allegiance to the pope cannot be trusted to obey a secular authority, are distinct from those that underlie Locke's general defense of toleration.
103. Nagel, "Moral Conflict and Political Legitimacy," p. 229.
104. Locke, A letter Concerning Toleration, pp. 27-28.
105. A helpful short analysis, which goes beyond the formal criteria that are usually advanced to identify a moral position, is Ronald Dworkin's "The Concept of a Moral Position," in his "Lord Devlin and the Enforcement of Morals," in Richard Wasserstrom, ed., Morality and the Law (Belmont, Calif.: Wadsworth, 1971), pp. 61-67.
106. Many substantive positions satisfy this requirement. For example, an "ethics of care," a morality that admits greater obligations to closely related people than to distantly related people or to humanity more generally, can be adopted by all members of a society, regardless of their class, race, or sex. The commonly drawn contrast between an "ethics of principle" and an "ethics of care" is not between a moral point of view and an amoral one. But some commonly encountered arguments do not satisfy the requirement of a moral point of view-e.g., an argument to restrict the basic liberties of a minority simply on the grounds that members of the majority have a preference for restricting their liberty. Such a position could not reasonably be adopted by a member of the minority and therefore fails to qualify as a moral point of view.
107. Joshua Cohen, "Deliberation and Democratic Legitimacy," in Alan Hamlin and Philip Pettit, eds., The Good Polity: Normative Analysis of the State (Oxford: Blackwell, 1989), pp. 17-34.
108. Charles Larmore, Patterns of Moral Complexity (Cambridge: Cambridge University Press, 1987), esp. pp. 59-66
109. Bernard Manin, "On Legitimacy and Political Deliberation," Political Theory 15 (1987), pp. 338-68.
110. Roger Wertheimer, "Understanding the Abortion Argument," in Marshall Cohen et al., eds., The Rights and Wrongs of Abortion (Princeton, N.J.: Princeton University Press, 1974), pp. 23-51.
111. In contrast to what has been called recognition respect (what we owe all persons simply by virtue of their being persons), mutual respect is a form of appraisal respect; it expresses a positive appraisal of a person for manifesting some excellence of character. This "enables us to see that there is no puzzle at all in thinking both that all persons are entitled to respect just by virtue of their being persons and that persons are deserving of more or less respect by virtue of their personal characteristics" (
112. Stephen L. Darwall, "Two Kinds of Respect," Ethics 88 [1977], p. 46, also 38-39, 45
113. Albert Hirschman, "Having Opinions-One of the Elements of Well-Being?" American Economic Association Papers and Proceedings 79 (1989), pp. 75-79.
114. Quoted in Joseph A. Califano, Jr., Governing America (New York: Simon & Schuster, 1981), p. 84.
115. Remarks of Congressman Bill Green (R-N.Y.), Congressional Record, September 9, 1988, p. H7351.
116. However, Congressman Green's opponents did not draw the conclusion that he wished them to draw from the existence of moral controversy: that "the decision as to what should happen to the product of that was invoking a version of the neutrality argument to try to remove the issue from the political agenda.
117. Remarks of William Dannemeyer (R-Calif.), Congressional Record, September 22, 1983, p. H7319
118. Dannemeyer also said that the "economic consequences of the moral issue should not be permitted to resolve the matter," his entire speech was devoted to the "fiscal consequences."Representative Barbara Mikulski (D-Md.), Congressional Record, September 22, 1983, p. H7319.
119. Hirschman, "Having Opinions."Califano, p. 68 (emphasis added).
120. Califano also comments that he should do all he could to avoid "unnecessary provocation." "Religious Belief and Public Morality: A Catholic Governor's Perspective," September 13, 1984, pp. 17-18, photocopy.
121. Judith Jarvis Thomson, "A Defense of Abortion," in Cohen et al., eds., pp. 3-22.
122. Roe v. Wade, 410 U.S. 113 (1973), pp. 162-64.
123. William L. Webster et al. v. Reproductive Health Services et al., 57 LW 5023-5045 (June 27, 1989).
124. Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983).
125. For some examples of characteristics of legislative institutions, especially the Congress, that encourage and discourage deliberation
126. Jane Mansbridge, "Motivating Deliberation in Congress," in Sarah Baumgartner Thurow, ed., Constitutionalism in America (New York: University Press of America, 1988), vol. 2, pp. 59-86.
127. Alasdair MacIntyre, After Virtue (Notre Dame, Ind.: University of Notre Dame Press, 1981), esp. pp. 6, 20-21, 189.
128. Michael Sandel, Liberalism and the Limits of Justice (New York: Cambridge University Press, 1982), esp. p. 183.
129. John Rawls, "The Idea of an Overlapping Consensus," Oxford Journal of Legal Studies 7 (1987), pp. 1-25.
130. As Jürgen Habermas writes, "All contents, no matter how fundamental the action norm involved may be, must be made to depend on real discourses (or advocatory discourses conducted as substitutes for them)." "Discourse ethics," in Moral Consciousness and Communicative Action, trans. Christian Lenhardt and Shierry Weber Nicholsen (Cambridge, Mass.: MIT Press, 1993), p. 94.
131. Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge, Mass.: Harvard University Press, 1996), pp. 17-18.
132. Jack Knight, "Constitutionalism and Deliberative Democracy," in Stephen Macedo, ed., Deliberative Politics (New York: Oxford University Press, 1999), pp. 159-69.
133. Cass Sunstein, "Agreement Without Theory," in Macedo, pp. 147-48
134. Iris Marion Young, "Justice, Inclusion, and Deliberative Democracy," in Macedo, pp. 151-58.
135. Gutmann and Thompson, "Democratic disagreement," in Macedo, pp. 261-68.
136. statements by NICE's newly appointed director, Michael Rawlins, in Richard Horton, "NICE: A Step Forward in the Quality of NHS Care," The Lancet 353 (March 27, 1999), pp. 1028-29.
137. Gavin Yamey, "Chairman of NICE Admits That Its Judgments Are Hard to Defend," British Medical Journal 319 (November 6, 1999), p. 1222.
138. "NICE appraisal of Zanamivir (Relenza)" posted at www.nice. org.uk.
139. Stephen D. Moore, "U.K. Rebuffs Glaxo on New Flu Drug," Wall Street Journal (October 11, 1999), p. A19.
140. Stuart Hampshire, Innocence and Experience (Cambridge, Mass.: Harvard University Press, 1989), p. 112.
141. "NICE Appraisal of Zanamivir (Relenza)." For some of the reaction, see Moore, "U.K. Rebuffs Glaxo on New Flu Drug." The Food and Drug Administration approved Relenza for use in the United States despite a 13- 4 vote of an outside panel of experts recommending against approval. Some critics believe that the drug was overprescribed during a recent flu season.
142. Sheryl Gay Stolberg, "F.D.A. Warns of Overuse of two New Drugs Against Flu," New York Times (January 13, 2000), p. A18.
143. House of Commons debate, November 10, 1999.
144. Jo Lenaghan, "The Rationing Debate: Central Government Should Have a Greater Role in Rationing Decisions," British Medical Journal 314 (March 29, 1997), 967-71.
145. Gutmann and Thompson, Democracy and Disagreement, pp. 199-229.
146. Gutmann and Thompson, Democracy and Disagreement, pp. 352-53.
147. The discussion here of moral and political provisionality draws on our analysis in "Why Deliberative Democracy is Different," in Ellen Frankel Paul et al., eds., Democracy (Cambridge: Cambridge University Press, 2000), pp. 161-80 [chapter 4 of the present volume].
148. The range is determined by what we call "deliberative disagreements," which are those in which citizens continue to differ about basic moral principles even though they seek a resolution that is mutually justifiable. The dispute over abortion is an example of a deliberative disagreement, because both sides can justify their views within a reciprocal perspective. A dispute about racial segregation is an example of a nondeliberative disagreement, because one side can be reasonably rejected within a reciprocal perspective.
149. Gutmann and Thompson, Democracy and Disagreement, pp. 2-3, 73-79.
150. E. Rous et al., "A Purchase Experience of Managing New Expensive Drugs: Interferon Beta," British Medical Journal 313 (November 9, 1996), pp. 1195-96.
151. Gutmann and Thompson, Democracy and Disagreement, pp. 57-58.
152. Frederick Schauer, "Talking as a Decision Procedure," in Macedo, pp. 17-27.
153. Although most substantive theories are first-order theories, and many procedural theories are second-order theories, the substantive/ procedural distinction is not the same as the first-order/second-order distinction. The substantive/procedural distinction characterizes theories according to whether they justify political decisions by reference to independent moral principles or entirely by reference to features of the process. The first-order/ second-order distinction classifies theories according to whether they affirm the truth of a single consistent set of (substantive or procedural) principles that exclude other such principles, or whether they refer to the principles in a way that is consistent with a range of potentially inconsistent sets (for example, by prescribing certain attitudes or conduct with regard to the principles and the persons who hold them).
154. Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge, Mass.: Harvard University Press, 1996).
155. Karen Grandstrand Gervais et al., eds., Ethical Challenges in Managed Care (Washington, D.C.: Georgetown University Press, 1999), chaps. 1, 19, and 20. The rescreening test PAPNET seems to be the model for PUREPAP in the case study. Medical Industry Today (August 3, 1998) and Biomedical Market Newsletter (February 28, 1998) report on this test. Biomedical Market Newsletter reports that PAPNET would cost $33,781 for each abnormal Pap smear identified and $101,343 for each HPV identified, compared to $1,065 and $4,970, respectively, for manual rescreening. It also reports the results of a new CDC study released January 31, 1998 (Pt. 2): "Given the high costs of using the automated system, the study suggests other ways to reduce cervical cancer death. These include implementing more effective screening programs, such as performing Pap smears on women who do not currently receive them...."
156. Lawrence C. Becker, Reciprocity (London: Routledge and Kegan Paul, 1986), pp. 73-144.
157. Gutmann and Thompson, 1996, pp. 208-29.
158. Gutmann and Thompson, "Deliberating about Bioethics," Hastings Center Report (May/June 1997), pp. 38-41.
159. Gervais et al., pp. 17-18.
160. Kurt Baier, The Moral Point of View (Ithaca, N.Y.: Cornell University Press, 1958), pp. 187-213
161. John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), pp. 130-136.
162. Gervais et al., p. 18.
163. Gervais et al., p. 24.
164. John Stuart Mill, Considerations on Representative Government (London: Longman, Green, and Roberts, 1865), chap. III, p. 68.
165. Gutmann and Thompson, 1996, pp. 2-3, 73-79.
166. "South Africa Looks for Truth and Hopes for Reconciliation," The Economist (20 April 1996), p. 33.
167. We discuss only some of the most important and most general justifications here. In practice the TRC emphasized different purposes at different stages of its process.
168. Andre du Toit, "The Moral Foundations of the South African TRC," in Robert I. Rotberg and Dennis Thompson, eds., Truth v. Justice: The Morality of Truth Commissions [Princeton, N.J.: Princeton University Press], pp. 122-40.)
169. One of the most extensive defenses of the TRC lists fourteen different goals. But virtually all are particular forms of a limited number of the more general justifications, and in fact the authors themselves examine only a few in any detail.
170. Kadar Asmal, Louise Asmal, and Ronald Suresh Roberts, Reconciliation through Truth (New York: Palgrave Macmillan, 1998), pp. 10-11.
171. The commission itself presented its primary objective as promoting "national unity and reconciliation," but interpreted it to include various other purposes, such as "promotion of democracy," restoring the "dignity of victims," and encouraging "perpetrators... to come to terms with their own past." Truth and Reconciliation Commission, Final Report (Cape Town, 29 October 1998), I, ch. 4, "The Mandate," sections 2, 3, and 31.
172. Asmal et al., Reconciliation, pp. 12-27 (emphasis added). This argument often takes the form of appealing to a different kind of justice, usually called "restorative."
173. Tina Rosenberg, "Recovering from Apartheid," New Yorker (18 November 1996), p. 92.
174. Asmal et al., Reconciliation, pp. 19, 22.
175. Mark Gevisser, "The Witnesses," New York Times Magazine (22 June 1997), p. 32.
176. The TRC explicitly acknowledged that in carrying out its function of identifying perpetrators of gross human rights abuses, it gave greater weight to its "truth-seeking role... the public interest in the exposure of wrongdoing" than to the "fair treatment of individuals in what was not a court of law." It used a lower burden of proof than that required by the criminal justice system (Final Report, I, chap. 4, pp. 153-55). However, the amnesty hearings followed more closely the adversarial and judicial procedures. On some limitations of any appeal to due process,
177. Sanford Levinson, "Trials, Commissions, and Investigative Committees," in Truth v. Justice, pp. 211-34.
178. Dumisa Ntsebexa, "The Uses of Truth Commissions," in Truth v. Justice, pp. 158-79.
179. Rosenberg, p. 51.
180. Rajeev Bhargava, "Restoring Decency to Barbaric Societies," in Truth v. Justice, pp. 45-62.
181. Martha Minow, "The Hope for Healing," in Truth v. Justice, pp. 235-60.
182. Asmal et al., Reconciliation, p. 49.
183. Suzanne Daley, "In Apartheid Inquiry, Agony Is Relived but Not Put to Rest," New York Times (17 July 1997), p. A10.
184. Timothy Garten Ash, "True Confessions," New York Review of Books (17 July 1997), pp. 36-37.
185. Rosenberg, "Recovering," p. 95.
186. Alex Boraine, "Truth and Reconciliation in South Africa," in Truth v. Justice, pp. 141-57.
187. Ash, "True Confessions," p. 37.
188. Boraine, "Truth and Reconciliation."
189. Asmal et al., Reconciliation, p. 46
190. Mark Osiel, Mass Atrocity, Collective Memory and the Law (New Brunswick, N.J.: Transaction, 1999), pp. 210-11.
191. Asmal et al., Reconciliation, p. 47.
192. Michel Foucault, "Film and Popular Memory," Radical Philosophy XI (1975), pp. 24, 25.
193. Osiel, Mass Atrocity, pp. 209-12.
194. The National Unity and Reconciliation Act that created the TRC set this goal: "Establishing as complete a picture as possible of the causes, nature and extent of the gross violations of human rights which were committed during the period from March 1960 to the cut-off date, including the antecedents, circumstances, factors and context of such violations, as well as the perspectives of the victims and the motives and perspectives of the persons responsible for the commission of the violations..." (Final Report, I, chap. 4, section 31). In the end, the commission did not claim that it had succeeded in presenting a "complete picture," and in its "perpetrator findings" (V, chap. 6, sections 77-150) it followed a more cautious, judicial approach. But many of the general conclusions of the report have the character of an authoritative historical verdict (see, for example, I, chap. 2; II, chaps. 1, 3-5).
195. Final Report, V, chap. 6, sections 52-62, "The Commission's Shortcomings." At the conference at which an earlier version of this chapter was presented to members of the commission and staff, the authors suggested that the final report might include a candid discussion of its own limitations.
196. Asmal et al., Reconciliation, 46.
197. Charles Maier, "Doing History, Doing Justice," in Truth v. Justice, pp. 261-78.
198. This conception of democracy, including the value of reciprocity and the idea of an economy of moral disagreement that we present here, is developed more systematically in Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge, Mass.: Harvard University Press, 1996).
199. Lawrence C. Becker, Reciprocity (London: Routledge and Kegan Paul, 1986), pp. 73-144.
200. David Dyzenhaus, Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order (Oxford: Oxford University Press, 1998).
201. David Crocker, "Truth Commissions, Transitional Justice and Civil Society," in Truth v. Justice, pp. 99-121.
202. Gutmann and Thompson, Democracy and Disagreement, pp. 85-94.
203. Rosenberg, "Recovering," p. 90.
204. Hannah Arendt, The Human Condition (New York: Doubleday, 1959), pp. 217-218.
205. Second Submission of the National Party to the Truth and Reconciliation Commission, May 1997, "General Comments," p. 8 (available on the official TRC website [www.truth.org.za] under Human Rights Violations Committee, Submissions, National Party).