Liberalism and its critique: Is the therapy worse than the disease?

Philosophy & Social Criticism

Volumn 26, Issue 3, 2000, Pages 1-37

  Maffettone, Sebastiano ^a  

^a LUISS UNIVERSITY   (Italy)

Author keywords

deliberative democracy; justification; legitimation; liberalism; political philosophy; republicanism

Indexed keywords

EID: 84992778208     PISSN: 01914537     EISSN: None     Source Type: Journal    
DOI: 10.1177/019145370002600301     Document Type: Article

References (81)

1. F. Fukuyama, The End of History and the Last Man (New York: Free Press, 1992).
2. For the last authoritative version of this topic, see R. Dworkin, ‘The Roots of Justice’ (Readings, the Program in the Study of the Law, Philosophy and Social Ethics, New York University, Fall 1997).
3. For this distinction see J. Cohen, ‘Pluralism and Proceduralism’, Chicago-Kent Law Review LXIX (1994): 589–618.
4. See in particular C. Sunstein, Legal Reasoning and Political Conflict (Oxford: Oxford University Press, 1996) for an attack on the centrality of the Supreme Court within the American jurisprudential tradition. See also
5. F. Michelman, ‘Law's Republic’, Yale Law Journal (1988): 1493–1537 for a different argument in the same spirit. For a general restatement of the problem, see
6. B. Ackerman in We the People: Foundations (Cambridge, MA: Harvard University Press, 1991).
7. The authors I am referring to are Cohen, Gutman and Thompson (American deliberative democrats), Habermas (continental radical democracy), Sunstein, Michelman and Pettit (republicans). A similar critique to Habermas's can be found in C. Larmore, ‘The Moral Basis of Political Liberalism’, which is to appear in M. Kelly (ed.) The Rawls Habermas Debate (forthcoming). Larmore does not attack radical democracy directly for its proceduralism — as I do in the following — but for its failing to see the moral basis of liberalism and democracy in individual and collective self-respect. In so doing, however, he maintains that beyond deliberative democracy there is a moral authority, an opinion I share in this paper.
8. Sebastiano Maffettone and Ronald Dworkin, I fondamenti del liberalismo (Rome/Bari: Laterza, 1997).
9. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy trans. (from the original German version of 1992)
10. William Rehg (Cambridge, MA: MIT Press, 1996).
11. Habermas discusses Rawls in his ‘Reconciliation through the Public Use of Reason: Remarks on John Rawls's Political Liberalism’, which was published in Journal of Philosophy XCII(3) (March 1995): 109–31, together with Rawls's ‘Reply to Habermas’ (132–80). While my argument here is Rawlsian in spirit, and is inspired by what Rawls says in his ‘Reply’, internally it is much more closely tied to Habermas's logic while trying to attack it directly, and in this way is independent from Rawls.
12. For a reconstruction, see A. Honneth, The Critique of Power: Reflective Studies in a Critical Social Theory, trans. (from the German) K. Baynes (Cambridge, MA: MIT Press, 1991).
13. Michelman's ‘Law's Republic’ is a standard presentation of this republican version of deliberative democracy. But see also M. Sandel, Democracy's Discontent: America's Search for a Public Philosophy (Cambridge, MA: Harvard University Press, 1996).
14. For the problem of reconciling deliberative democracy and transmajoritarian premises see F. Michelman, ‘How Can the People Ever Make the Law?’ (see also Parts II and III of this paper). I had the opportunity to read Michelman's paper when my article was almost completely written and found it inspiring both for intrinsic reasons and because it is in sympathy with my own thesis. The main difference between Michelman's thesis and my own consists probably in our respective attitudes toward liberalism. He seems to see it as a kind of necessary evil, whereas I think it is more than that. Of course, Michelman sees political participation as having an intrinsically normative value in a way that I cannot share. About this interpretation, the third part of this paper is more explicit.
15. For the problem of so-called ‘populist’ democracy, see W. Riker, Liberalism Against Populism: A Confrontation Between the Theory of Democracy and the Theory of Social Choice (San Francisco: W. H. Freeman, 1982). The problem I am stressing concerns the fact that deliberation — according to the authors I am discussing here — must be severely qualified to avoid the shortcomings of aggregative or populist democracy. The result is that these qualifications make their doctrine too similar to liberalism.
16. See J. Cohen, ‘Deliberation and Democratic Legitimacy’, in A. Hamlin and P. Pettit (eds) The Good Polity (Oxford: Blackwell, 1989), pp. 17–34, quoted here from the version reprinted in
17. J. Bohman and W. Rehg (eds) Deliberative Democracy (Cambridge, MA: MIT Press, 1997), pp. 67–92.
18. In the same anthology, see also J. Cohen, ‘Procedure and Substance in Deliberative Democracy’ (pp. 407–38), in which the author connects democratic legitimacy with a qualified procedure for collective decision—making. It is possible to argue that within social choice theory one can interpret the concept of deliberation so that it appears normatively more pregnant than we usually imagine; see
19. J. Coleman and J. Ferejohn, ‘Democracy and Social Choice’ and J. Cohen, ‘An Epistemic Conception of Democracy’, both in Ethics (October 1986): 26–38.
20. For a similar idea, see also T. Christiano, The Rule of the Many (Boulder, CO: Westview Press, 1996). According to
21. S. Benhabib, ‘Toward a Deliberative Model of Democratic Deliberacy’, in Democracy and Difference (Princeton, NJ: Princeton University Press, 1996), the normative meaning of majorities for deliberative democracy lies upon the ‘presumptive claim to being rational until shown to be otherwise’ (p. 72).
22. This thesis has been more formally argued by D. Estlund, ‘Opinion Leaders, Independence, and Condorcet's Jury Theorem’, Theory and Decision 36(2) (1994), with special reference to the so-called ‘jury theorem’.
23. Cohen, ‘Deliberation and Democratic Legitimacy’, p. 73.
24. See A. Gutman and D. Thompson, Democracy and Disagreement (Cambridge, MA: Harvard University Press, 1996), p. 5, 14, 17, 27 and 247.
25. See, in particular, Habermas, Between Facts and Norms, Chapter 3.
26. D. Rasmussen, Reading Habermas (Cambridge, MA: Blackwell, 1990).
27. Habermas, Between Facts and Norms, Chapter 3, and in particular p. 106 and following. It is disputable whether the co—originality actually takes place within Habermas's framework because collective will appears a stronger foundational moment given the radical democratic aspirations of the theory. My argument, however, seems to be independent of this possible weakness of co-originality, because of its being valid both if Habermas's argument works and if it does not, 110.
28. Between Facts and Norms, Postscript, p. 110.
29. Rasmussen, Reading Habermas.
30. For this notion, see T. McCarthy, The Critical Theory of Jürgen Habermas (Cambridge, MA: MIT Press, 1978). For a rejoinder see the second part of the same author's Ideals and Illusions: On Reconstruction and Deconstruction in Contemporary Critical Theory (Cambridge, MA: MIT Press, 1991).
31. The passage from the second, and more traditional, notion to the first is mediated by the procedural idea according to which the traditional concept of people sovereignty is expressed through the conviction that emancipated individuals are the authors of their destiny. This interpretation gradually transforms the notion of people sovereignty in the domain of procedural universalism. For such a passage, see Habermas, Between Facts and Norms, Appendix I. The outcome of this complex move is the supposed reconciliation of (liberal) human rights and democracy, in which ‘The exercise of popular sovereignty simultaneously secures human rights’ (p. 473). It is almost superfluous to note that the question—begging strategy invoked here does not solve the problem we are emphasizing; on the contrary, it shows its relevance for Habermas's argument.
32. See Habermas, Between Facts and Norms, p. 107;
33. see also Larmore, ‘The Moral Basis of Political Liberalism’, for a similar comment, and
34. A. Ferrara, ‘Democrazia e giustizia nelle società complesse: per una lettura di Habermas’, Filosofia e questioni pubbliche (1996): 67–118 for an interpretation of the discourse principle.
35. See Habermas, ‘Remarks on Rawls’, p. 128.
36. For a recent presentation of this distinction, see J. Rawls, ‘The Idea of Public Reason Revisited’, University of Chicago Law Review 64(3) (1997): 768, where the background culture is defined as ‘the culture of civil society’, distinct ifn principle by the public reason operating in the political setting.
37. See Habermas, ‘Remarks on Rawls’, p. 121 (emphases added), 122, 127.
38. I have in mind here feminist theses like I. M. Young's Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990) or S. Benhabib's Situating the Self (London: Routledge, 1992), in particular pp. 203–41.
39. For a related perspective, see also C. A. MacKinnon, Toward a Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989) and
40. D. L. Rhode, Justice and Gender (Cambridge, MA: Harvard University Press, 1989).
41. P. Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Clarendon Press, 1997).
42. By the same author concerning this topic, see also ‘Liberalism and Republicanism’, Australian Journal of Political Science 88(2) (1993): 284–339 and
43. ‘Negative Liberty, Liberal and Republican’, European Journal of Philosophy I (1993): 15–38.
44. This tradition can be labeled either ‘republican’ or ‘neo-roman’ or ‘commonswealthman’ or ‘civic humanist’. For the neo-Roman character of this tradition, as opposed to neo-Athenian, see Q. Skinner, Liberty Before Liberalism (Cambridge: Cambridge University Press, 1998), which is very useful to reconstruct the political and cultural heritage of this ideal.
45. By the same author, see also ‘The Republican Ideal of Political Liberty’, in G. Bock, Q. Skinner and M. Viroli (eds) Machiavelli and Republicanism (Cambridge: Cambridge University Press, 1990) and
46. ‘On Justice, the Common Good and the Priority of Liberty’, in C. Mouffe (ed.) Dimensions of Radical Democracy (London: Verso, 1992).
47. See also J. G. A. Pocock, Politics, Language and Time: Essays on Political Thought and History (Cambridge: Cambridge University Press, 1985) or The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, NJ: Princeton University Press, 1975), and
48. R. Koselleck, Future Past, trans. K. Tribe (Cambridge, MA: MIT Press, 1985). For the Renaissance influence see
49. M. Viroli, From Politics to Reason of State: The Acquisition and Transformation of the Language of Politics, 1250–1600 (Cambridge: Cambridge University Press, 1992).
50. For the relationship between the English-speaking tradition and the German one see M. Richter, ‘Reconstructing the History of Political Languages: Pocock, Skinner and the Geschichtliche Grundbegriffe’, History and Theory 29 (1990): 38–70.
51. D. Herzog, ‘Some Questions for Republicans’, Political Theory 14 (1986): 473–93, usefully connects historical and theoretical sides of the argument. The American version of republicanism is presented by
52. M. N. S. Sellers, American Republicanism (New York: New York University Press, 1995) and the English version by
53. B. Worden, ‘English Republicanism’, in L. S. H. Burns and M. Goldie (eds) The Cambridge History of Political Thought, 1450–1700 (Cambridge: Cambridge University Press, 1991).
54. A theoretical historical presentation of the republican argument can be found in D. Ivison, The Self at Liberty (Ithaca, NY: Cornell University Press, 1997), which presents an original link between republicanism and postmodernism à la Foucault in the name of self-liberation.
55. A further difficulty lies probably in the partial overlapping of republicanism and communitarianism, for which see M. Sandel, ‘Morality and the Liberal Ideal’, The New Republic (7 May 1984): 15–17
56. ‘The State and the Soul’, The New Republic (5 June 1985): 37–41
57. ‘Democrats and Community’, The New Republic (22 February 1988): 20–3
58. ‘The Procedural Republic and the Unencumbered Self’, Political Theory 12 (1984): 81–96.
59. See also C. Taylor, ‘Cross-purposes: the Liberal Communitarian Debate’, in N. Rosenblum (ed.) Liberalism and the Moral Life (Cambridge, MA: Harvard University Press, 1989).
60. See C. R. Sunstein, ‘Beyond the Republican Revival’, Yale Law Journal 97 (1988): 1539–90;
61. J. Elster and R. Slagstad (eds) Constitutionalism and Democracy 1994 (Cambridge: Cambridge University Press, 1993);
62. see also F. Michelman, ‘Foreword: Traces of Self-government’, Harvard Law Review 4 (1986) and ‘Law's Republic’.
63. See Sunstein, ‘Beyond the Republican Revival’; for the general political philosophical position, see Sunstein's ‘Politics and Preference’, Philosophy and Public Affairs 20 (1991): 3–34; for a recent general overview, see
64. Free Markets and Social Justice (Oxford: Oxford University Press, 1997); the general position is connected to the regulation and to the legal system also in After the Rights Revolution (Cambridge, MA: Harvard University Press, 1990); the constitutional theory is presented in The Partial Constitution (Cambridge, MA: Harvard University Press, 1993); the anti-theoretical outlook is in ‘Incompletely Theorized Agreements’, Harvard Law Review 108 (1995): 1733–72.
65. See Sunstein, ‘Beyond the Republican Revival’, p. 1541, 1549.
66. F. Michelman, ‘How Can the People Ever Make the Laws? A Critique of Deliberative Democracy’, in Bowman and Rehg (eds) Deliberative Democracy.
67. Michelman, ‘How Can the People’, p. 150.
68. Reference here is to two classical works: I. Berlin's Two Concepts of Liberty, (Oxford: Oxford University Press, 1958); and
69. B. Constant's, Political Writings, ed. B. Fontana, (Cambridge: Cambridge University Press, 1988).
70. J. G. A. Pocock, ‘Civic Humanism and Its Role in Anglo-American Thought’, in his Politics, Language & Time (Chicago, IL: University of Chicago Press, 1989[1960]), 103.
71. See Pettit, Republicanism, Chapter 5.
72. For a brilliant presentation of this idea see J. Elster, ‘The Market and the Forum’, in J. Elster and A. Hylland (eds) The Foundations of Social Choice Theory (Cambridge: Cambridge University Press, 1986), pp. 103–32.
73. See Sunstein, ‘Beyond the Republican Revival’, pp. 1547–8.
74. In some way this ideal reformulates Arendt's option; see H. Arendt, The Human Condition (Chicago, IL: University of Chicago Press, 1958).
75. See Sunstein, ‘Beyond the Republican Revival’, p. 1550, 1556.
76. This sort of argument is maintained by H. Pitkin, ‘Justice: On Relating Public to Private’, Political Theory 327 (1981): 346–7, in polemics with Arendt. See also
77. Young, Justice and the Politics of Difference and
78. Sunstein, ‘Beyond the Republican Revival’, p. 1550.
79. For an interesting discussion of these topics, see A. J. Simmons, ‘Justification and Legitimacy’ (Readings, the Program for the Study of Law, Philosophy and Social Theory, New York University, Fall 1997); and
80. A. Nelson, ‘Explanation and Justification in Political Philosophy’, Ethics 97 (October 1986): 154–76.
81. Sunstein, ‘Beyond the Republican Revival’, p. 1564.