Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy
MIT Press, $40
Freedom’s Law: The Moral Reading of the American Constitution
Oxford University Press, $35
Constitutionally speaking, “democracy” in our times signifies something beyond the rule of the many or the crowd as opposed to the few, the best, or “the one.” Constitutional democracy marches arm-in-arm with freedom (by which I don’t mean to exclude its conceptual and polemical alliance with equality and community). The term names a standard by which a country is not free, its inhabitants not free men and women, unless political arrangements are such as to place the people under their own joint rule. “Self-government,” it’s often called.
No doubt the prevailing democratic ideal does accept a large amount of rule pro tanto by legislative, administrative, and judicial officers, operating within schemes of representative government. What the ideal tests, in the end, are the constitutive or fundamental laws of a country; the laws, that is, that fix the country’s “constitutional essentials”-charter its political institutions and offices, define and limit their respective powers and jurisdictions, establish basic obligations of government and rights of the governed. “Constitutional democracy,” in sum, connotes (1) an appraisal of fundamental laws, with (2) a view to joint popular political self-rule, as (3) a condition of political and personal freedom.
No credible view denies that procedures of governance-for example, rules and schemes for the election of representatives-are central to the question of constitutional democracy. There is nevertheless a way of treating the question as one of substance as opposed to procedure, and that is by making the test of a regime’s democratic credentials a matter of the prescriptive content of its fundamental laws but not the authorship of those laws themselves-a matter of what the laws require, rather than who wrote them. Indeed among pro-democratic theorists who would comparably rate the more-or-less democratic characters of various countries’ political constitutions, there is sharp disagreement over the following seemingly crucial question: Is it fundamental law, or is it rather fundamental lawmaking, with whose democratic character we finally have reason to be concerned?
In the substantive view of constitutional democracy, the question of a given regime’s democratic character depends only on what its fundamental or constitutive laws prescribe and not at all on how they came to prescribe it.1 We ask whether those laws provide for more-or-less popularly accountable day-to-day government based on a more-or-less equally distributed franchise; for nondiscriminatory lawmaking and prohibition of caste distinctions; for protection against arbitrary and oppressive uses of state powers; for strong rights of moral autonomy, freedom of thought, freedoms of political expression and association; whatever. If the answers match our profile for democracy, we judge the regime democratic, no matter its authorship. On the procedural view, in contrast, the regime is not democratic, no matter the democratic nicety of its fundamental-legal prescriptive content, unless the country’s people at all times retain appropriate joint control over that content, too.
Controversy between these two views is currently live in liberal constitutional theory. Jürgen Habermas takes the procedural side in Faktizität und Geltung (1992), recently published in English as Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Ronald Dworkin takes the substantive side in Freedom’s Law: The Moral Reading of the American Constitution. What are the stakes over which these champions contend?
To get a sense of what they might be, consider some disputes that currently rage over what the prescriptive content of a set of fundamental laws must be if the regime constituted by those laws is to be approved as ideally democratic. Is the regime properly democratic only in the absence (as some claim) or only in the presence (as others oppositely claim) of state-administered corrections of market-based distributions of economic means? Only in the absence (or, oppositely, only in the presence) of affirmative action, or of cumulative voting or proportional representation? Only in the absence (or only in the presence) of federalism, separation of powers, and other checks and balances? In the absence (or in the presence) of gun control, or of regulation of political spending, or of guarantees of procreational autonomy, or of barriers to religious expression in public educational and other spaces?
All these variables and others are sharply contested in our political culture, precisely as matters of what is required by the best distillation of the abstract ideal of democracy from settled aspects of democratic practice. But then the same contests may also and by the same token be disputes over what judges ought to do when they face constitutional questions. They will so appear to all who take democracy to be such a central aim of the Constitution that questions of constitutional-legal interpretation must depend to some degree on what democracy demands.
Take for example current controversy over whether a constitutional mandate against abridgements of “the freedom of speech” is best-most democratically-construed as sweepingly prohibiting all legal curbs on blatantly racist expression in public. Some argue that such curbs are required in order to secure political equality, others that they attack the very notion. According to the substantive view of constitutional democracy, the regime ought to be judged democratic just insofar as it resolves this question in whichever way is really democratically correct; the standard is, in Dworkin’s terms, “result-driven.” According to the procedural view, the regime is democratic just insofar as the question is resolved by democratic procedures. One might think it would matter crucially which view one takes in deciding, for example, how deferential the Supreme Court ought to be towards a state legislature’s decision to enact a “hate speech” law.
It’s a striking fact, though, that the choice of views does not have precisely that kind of significance for either Habermas or Dworkin. Habermas does not suppose that his proceduralism precludes a judicial-review institution much like the one we have, nor does Dworkin suppose that his substantive conception necessitates any such institution at all. Some other concern is evidently driving our authors’ respective encounters with this particular substance/procedure distinction. I want to suggest that both encounters, Dworkin’s no less than Habermas’s, reflect desires, in the face of perceived difficulties, to find a place in liberal constitutional theory for the positive aspect of political freedom-the dimension of freedom that consists in authoring the laws you live by.
Habermas’s proceduralist colors fly from his English title. His text emphatically keeps the promise, declaring, for example, that in “the democratic procedure for the production of law” lies “the only postmetaphysical source of legitimacy.” (As we proceed, it will become clear beyond doubt that by “law” here Habermas means the most fundamental law we can conceive.) Recently Habermas launched the following complaint against the effort of John Rawls to find support for liberal constitutional principles in the hypothetical deliberations of parties in a philosophically constructed “original position”:
From the perspective of the [philosophically elaborated] theory of justice, the act of founding the democratic constitution cannot be repeated under the institutional conditions of an already constituted just society . . . . It is not possible for the citizens to . . . reignite the radical democratic embers of the original position. . . for . . . they find the results of the theory already sedimented in the constitution. . . . [T]he citizens cannot conceive of the constitution as a project.”2
This, plainly, is a call for democratic procedure even at the point of deciding the most fundamental laws of the regime or, indeed, of formulating principles or norms by which to test the laws.
That is precisely the call that Ronald Dworkin argues we cannot make-can’t make, at any rate, on the constitutional conception he defends as the most satisfactory account of what in fact we do and claim in democracy’s name. On Dworkin’s conception, “democracy” points not to a procedure but to a state of affairs-points to government treating “all members of the community, as individuals, with equal concern and respect.” If that indeed is what democracy as best understood requires, then given the obvious points that (i) popularly based determinations of fundamental legal content might deviate from the stated aim, and that (ii) some other arrangement might better protect and respect the aim-for example, an arrangement for control of fundamental legal meaning by an independent judiciary-there can in principle be no objection, “in the name of democracy,” to resort to such other arrangements.
Dworkin does in fact cast this argument as a partial defense of the American practice of judicial review-a defense of it, specifically, against what Alexander Bickel named the “counter-majoritarian difficulty”3 and Dworkin now calls the “majoritarian premise.” Both these terms refer to an ostensibly pro-democratic intuition or claim: that acts of representative assemblies based in majority rule ought presumptively, as an elementary point of democratic principle, to prevail against the contrary views of electorally unaccountable judges. Although some have tried, one can’t beat back this claim with any doctrine of what constitutional interpretation properly involves. Take for example Dworkin’s own advocacy of a “moral reading” approach to the constitution’s abstract rights-declarative clauses-“freedom of speech,” “free exercise of religion,” “due process” and “equal protection” of law. A moral reading treats these clauses as “invocations” of great political-moral principles in a unified “political theory” that the interpreter distills from major fixed points of constitutional law and culture. As Dworkin now makes clear,4 such an approach only serves to accentuate the counter-majoritarian difficulty (or, if you prefer, the majoritarian premise). A fundamental law that speaks at the level of high political-moral principle necessarily leaves innumerable issues for resolution at various points and stages of more concrete application (“interpretation”)-“great and defining issues,” Dworkin calls them-that are themselves sites of major political-moral controversy on which reasonable people can and do differ. Issues such as, for example, whether a mandate against abridgements of the freedom of speech is best (or most democratically) construed as sweepingly prohibiting all legal curbs on blatantly racist expression in public.
Assigning resolution of such grand interpretative controversies to law-courts rather than leaving it to the organs of directly representative government strikes many as wrongheaded in a system in which supposedly (I use the singing prose of the Republican Platform) “the people and their representatives decide issues great and small.” In a word, it seems undemocratic. Observe, however, that it’s only so on the procedural understanding of what constitutional democracy requires. According to the substantive view, the object is to get the controversial issues resolved in the way that best conforms to (let us say) treating everyone with equal concern and respect. Since it’s an empirical question what role for judges will best serve this aim, no role we give them can be classed as counter-democratic “in principle,” just as such. That is certainly one major thesis that Dworkin is out to establish.
Habermas rejects neither judicial review nor the moral-reading approach to constitutional adjudication. But he disagrees radically with Dworkin over how best to explain and defend these things as pro- rather than counter-democratic. And here we run into a surprising twist: On the argumentational axis that runs from “individualism” on the right to “collectivism” on the left, Dworkin’s terms of argument in favor of democracy-as-substance stand apparently to the left of Habermas’s terms of argument in favor of democracy-as-procedure. That’s of course an apparent reversal from our accustomed sense of a populist or communitarian background for strong democratic proceduralism as opposed to an individualist-liberal background for substantive “rights-foundationalism,”5 and it accordingly leaves puzzles on both sides of our divide. On Habermas’s, the puzzle is the unlikely-looking attempt to wring a relentlessly democratic-proceduralist conclusion from decidedly individual-regarding starting points, in an intellectual milieu where it has long been axiomatic that one has to choose between (substantive) individual rights and (procedural) democracy.6 On Dworkin’s side, the puzzle is the flow of communalist rhetoric from the author of Taking Rights Seriously, who declared in that work that the distinguishing mark of a rights-based political theory is that such a theory “places the individual at the center and takes his [independence] as of fundamental importance.”7
Habermas, along with Dworkin, belongs to the family of political moralists who judge political arrangements by asking whether the arrangements sufficiently honor the elementary moral entitlements to consideration that these moralists ascribe to entities in some class. Suppose we call “liberal” any thought of this kind that makes individuals the bearers of elementary entitlements to consideration. We opposingly classify as “populist” the thought that assigns elementary political-moral entitlements to the people, somehow collectively conceived as a locus of agency, experience, or “energy.”8 Then the thought of Habermas falls decidedly on the liberal side of the line. It deeply shares with the thought of Locke, Kant, Mill, Rawls, and Dworkin a view of human individuals as severally possessed of capacities for rational agency, for taking some substantial degree of conscious charge of their own minds and lives, making and pursuing their own judgments about what is good and what is right.9 Accordingly, it also deeply shares with theirs a sense of the ineliminable coerciveness of political government and a concomitant view of what it must mean to defend against complaint the governmental presence in people’s lives-which is, to show that all affected persons severally have what are actually, for them as individuals, good reasons for consent at least to the fundamental laws that constitute the system of government they are under.
A Habermasian version of this line of thought appears in the twin propositions that he labels “U” and “D”:
[U] For a norm to be valid [meaning for the norm be observable “out of respect for” it], the consequences and side effects that its general observance can be expected to have for the satisfaction of the particular interests of each person affected must be such that all can accept them freely;
[D] “[O]nly those norms of action are valid to which all possibly affected persons could assent as participants in rational discourses.”
D as written is not quite a procedural equivalent or translation of U; rather, the two propositions jointly asserted reflect upon each others’ meanings.10 But it’s clear that the statements together characterize political justification in terms of hypothetical universal agreement, by those who stand to be affected and who reason correctly. And hypothetical consent based on correct reasoning is a substantive, not a procedural, test for the justified character of a set of fundamental laws. So if-as the U-D coupling apparently implies-liberal-individualist premises require that sort of test, then not only has Habermas no argument yet for a requirement of an actual democratic-procedural provenance for a set of fundamental laws, he has an argument against such a requirement. For as Dworkin would doubtless be quick to point out, there’s an obvious conceptual gap between (i) a procedure designed to issue in fundamental laws that are rationally approvable by everyone and (ii) a procedure designed to afford a full and equal part to everyone in fundamental lawmaking. An elitist institution could turn out to be just the ticket for the first requirement, even as the second would surely disqualify it. We want to know how Habermas bridges this conceptual gap between hypothetical consent and actual democratic practice, and why he spurns the substantive-democratic or rights-foundationalist anchorage that seems so naturally congenial to individualist-liberal thought.
Two possibilities you may think of can be quickly rejected. First, some moralists (Kant would seem to be the modern-liberal godfather) think of individual freedom as having a “positive” as well as a “negative” aspect; as consisting, that is, in moral self-direction as well as in the absence of external social constraint on what one does. On that view, my freedom depends on my having approved, on due reflection, the fundamental laws of my country as true laws of justice. Assuming that Habermas shares this view of freedom, as well he may, it’s still not enough to explain his insistence on actual discursive engagements among citizens over the contents of their country’s constitutive laws. That is because a requirement of reflective approval can be satisfied by the very sort of Rawlsian grounding for constitutional principles-everyone arrives separately at a reflective considered judgment that some-or-other philosopher has gotten them right-that Habermas has said he finds democratically wanting.
But what if Habermas further thinks that every person simply has a primal interest and correlative moral right to an equal part with others in determining the fundamental laws of the regime to which he or she is subject? That view’s ultimate tendencies are more apparently rights-foundationalist than they are democratic-proceduralist, in this respect: This universal moral entitlement of fundamental-legal co-authorship presumably doesn’t just present itself for no reason. It must rather come out of some already-executed stage of reasoning. Someone has concluded that there ought to be “sedimented” into the fundamental laws of a country-from here on in, and always subject to this very requirement of which we now speak-provision for universal individual rights to take part as free and equal in fundamental lawmaking. This conclusion, though, would itself have to stand as a dictate of reason for which some philosopher (there might at any time be countless of us) has to take responsibility. Rights-foundationalism, in a word.
Where, then, from here? How does Habermas get to the conclusion that “the democratic procedure for the production of law. . . forms the only. . . source of legitimacy?”
To begin with, “legitimacy” in this usage carries a special signification. It means to all intents and purposes “validity,” and “validity” refers to a particular notion of what lends moral defensibility to acts of submission to a lawmaking system or, where necessary, of forcible imposition of it: and that is, a sufficiently strong if still imperfect tendency in the system to issue in results that conform to the U-D standard of normative rightness. For Habermas, a crucial further proposition appears to be this: Only someone aided by actual dialogic encounter with the full range of affected others can reliably appraise the rational acceptability of proposed fundamental laws to all those affected by them. More precisely, only such a person can appraise the laws reliably enough (or apparently reliably enough) to confer the validity that we demand of a coercion-backed political regime. “[I]ndividual private rights,” Habermas writes in one exemplary passage,
cannot even be adequately formulated, let alone politically implemented, if those affected have not first engaged in public discussions to clarify which features are relevant in treating typical cases as alike or different, and then mobilized communicative power for the consideration of their newly interpreted needs.11
Roughly, the idea is to draw an evidentiary connection between what’s actually agreed by most under adequate procedural conditions and what would hypothetically be agreed by all under ideal conditions. Suppose that, under adequate conditions, most people agree that a norm is right (would be universally accepted under ideal conditions). Then, although it may not be right, it is nevertheless valid (observable out of respect for it) and as such may legitimately (with moral justification) be imposed by force of law. In the words of Habermas, only the submissibility of the hypothetical question at any time to an actual democratic-discursive forum can sustain a “presumption” that enacted laws are universally rationally acceptable-a presumption required for conferring validity on laws. We have here an “epistemic” theory of democracy, one that cites as a reason for favoring democratic procedures a supposed tendency they have to reach outcomes approximating to procedure-independent standards of rightness.
We also have here a trap. Recall our list of controversies over what is required of the prescriptive content of a set of fundamental laws in order to qualify them as properly democratic-economic distribution, affirmative action, proportional representation, campaign finance, etc. Take again our example of the hate-speech question. Suppose Habermas is correct in general that only in the wake of an adequate or proper democratic debate can questions of fundamental-legal content be resolved in a way that morally permits the resolution’s imposition by force of law. The trap is that the question of the regulability of “hate speech” is one of fundamental-legal content, just by virtue of being one about what makes for a proper democratic debate, the very debate that Habermas says is required for a valid resolution of that very question. So we cannot decide whether the conditions of debate were adequately democratic without first deciding whether democracy requires, permits, or excludes the regulation of hate speech. Presuppositional to proper democracy, it seems, is a set of institutionally supported norms-one may as well call them, as Dworkin does, “constitutive rights”-respecting treatment of persons by one another and by the state, in respects pertinent to participation in public discourse. Habermasian validity, in short, requires the presence on the scene of individuals already constituted by fundamental laws as free and equal; yet only they can validly decide what content is required for the fundamental laws that thus constitute them.
This point has not, you may be sure, escaped Ronald Dworkin. Preferring the substantive (“constitutional”) conception to the procedural conception of democracy, Dworkin points to the radical incompletion of the procedural view: In his words, that democracy procedurally understood “cannot prescribe the procedures for testing whether the conditions for the procedures it does describe are met.” More intriguing is that the point has by no means escaped Jürgen Habermas. Over and over he recurs to, as if savoring, the paradox: He touts as “the democratic principle” the proposition that only those laws can be legitimate that can gain the assent of all in a procedure “that has itself been legally constituted.” “The idea of the rule of law,” he says, “sets in motion a spiraling self-application of law.” And the citizens themselves. . . decide how they must fashion the rights that give the discourse principle legal shape as a principle of democracy. . . . [They] make an originary use of a civic autonomy that thereby constitutes itself in a performatively self-referential manner.
Indeed. But the question hangs achingly: Where in history can this originary-yet valid-constitutive lawmaking ever conceivably be fixed or anchored?
At this point Habermas has to yield on something, and he does. What gives way, to a degree, is fundamental lawmaking by the people, sometimes called “popular sovereignty.” Habermas designates civil society to serve as a proto-legislative-but not quite a legislative-constitutional organ. He posits concurrent formal and informal democratic-discursive arenas, the informal for democratic “opinion”-formation and the formal for democratic “will”-formation issuing in authoritative declarations of fundamental- legal content. The formal arenas are the representative assemblies-one could add constitutional courts, subject to qualifications-where proposals regarding fundamental-legal content can be docketed, debated, adjusted, dickered, and authoritatively enacted over remaining disagreement.12 The informal arenas are the more open and fluid structures of civil society to which everyone has access from a base secured in part by “liberal patterns of socialization,” but also in part by determinations of fundamental-legal content issuing from the formal arenas over which the informal one retains its influence. If all goes well, the informal arenas exert a “subjectless” influence on the formal ones: They are incapable of enacting or authoritatively construing fundamental laws but capable of inspiring enactments and constructions, and are protected by the laws and constructions they inspire against colonization by those who enact and authoritatively construe the laws. In the end, we are left relying for democratic-discursive validation not on “a collectively acting citizenry” but on a somewhat mechanistic “interplay” between democratically institutionalized will-formation (and will-construction) and informal opinion-formation.
For many democrats, surely, this will be a dispiriting meltdown of popular sovereignty. How confident can we be of either the democratic-discursive virtue or the effective influence of such a weakly institutionalized forum as the “civil society” we know? How does informal talk in multiple social settings translate into control over political authorities? And wasn’t it, anyway, a collectively acting citizenry that we precisely envisioned and wanted-an authoring subject, a master of the machine not just a cog in it? Along with these plaints goes the somewhat tinny sound, to devotedly pro-democratic ears, of the epistemic reason for the moral mandate of democracy: Surely, we-and he-have all along meant something more soul-rousing than that! Behold, then, Ronald Dworkin waiting to show us how to reignite the embers, where to seek and how to recover the Lost Chord. Where? In the precincts of the equal dignity of humankind and foundational human rights. How? By just letting go these scruples about a philosophical or speculative grounding for true democratic principles, in hypothetical agreements or axioms of equality.
A Dworkinian substantive (“constitutional”) conception of proper democracy means some form of institutional entrenchment of basic human-rights interpretations against procedural-democratic revision. It looks like rejection of that basic human right or good of moral and political self-determination that we call positive political liberty. To reply to the majoritarian objection, Dworkin nevertheless needs to uphold the constitutional conception. To uphold that conception persuasively, he needs to demonstrate its consonance with endorsement of positive liberty as a basic human interest.
Crucial to the demonstration is Dworkin’s distinction between two “kinds” or “readings” of collective action-between two ways of interpreting the idea that a decision has been made “by the people.” Collective action is “statistical” when construed as a function of individual actions to which it’s reducible without remainder. Market price is Dworkin’s leading example. “The market,” he says, names no “actual entity,” and nothing is lost in translation if we say that what sets the price is a series of co-responsive actions by individual traders. The statistical form of decision-by-the-people is, of course, a nose-count.
“Communal” is Dworkin’s term for collective actions that are not seen as reducible to individual actions: Detectable actions of a severalty of individuals “merge” into a “further, unified, act that is together theirs,” the act of a “collective agency.” Dworkin offers as one example the sense of responsibility for Nazi atrocity that many members of the German nation carry to this day. On a communal reading of decision-by-the-people, it’s not “individuals taken one by one” that do the deciding but “a distinct entity-the people as such.” Dworkin at this point is sounding like the principled populists I mentioned above-the ones who believe that an organized people is the basic subject of entitlement and agency. He sounds like them although he certainly is not one of them, and thereby hangs a part of our tale.
Dworkin’s self-assigned task is defense of the constitutional conception of democracy against the charge of defeating positive liberty. The charge is highly plausible, because the constitutional conception obviously restricts the scope of popular self-government by entrenching certain individual rights. The defense proceeds in two steps: First, Dworkin argues that the very idea that democracy serves positive liberty presupposes a communal conception of decision-by-the-people. Second, he argues that a communal conception of decision-by-the-people implies the constitutional conception of democracy.
Why does the very idea that democracy serves citizen self-government presuppose a communal conception of decision-by-the-people? Because as to any individual taken separately, it’s perfectly likely that leaving interpretation of basic liberal rights to a non-popular forum expands rather than contracts that person’s “control of his own fate.” Submitting the question of procreative autonomy rights to popular determination gives me virtually no more control over the outcome of this morally charged event than I have when a governor-general decides it. Yet it could well be that the governor-general will decide or construe the basic law in a way that leaves each individual more control over his or her own fate than the people acting collectively would do. Dworkin concludes that if any being’s positive liberty is in principle infringed when the constitutional conception allows non-popularly determined basic-rights interpretations, it can only be that of the citizenry taken whole.
Dworkin, however, is decidedly no populist. Democracy’s aim, in his view, is to assure the community’s individual members proper treatment. So he needs to yoke the individual’s positive political freedom to that of the citizenry taken whole: What makes it “sensible” for a person to treat himself-hence “fair” for the rest of us to treat him-as self-governing by virtue of a collective act from which he may have statistically dissented? Dworkin’s answer is that it can only be a person’s warranted sense of “moral membership” in the community that allows and disposes him to claim the community’s act as his own.
For such a sense, however, Dworkin sets strong preconditions. “Membership” here has to mean recognition by the rest as free and equal; I can sensibly regard myself as a member only if the body’s decisions are consistent with such recognition. Those decisions, therefore, must treat me as someone having a “part” and a “stake” in collective decisions and also moral “independence” from those decisions. But I can only have such a part and a stake and independence if certain conditions obtain: rules of equal suffrage and representation and safeguards of political expression and association; equality of legal standing and protection against abusive discrimination; freedom of thought and conscience, and autonomy in matters beyond the community’s legitimate concern; in short, only in a scheme that assures liberal constitutive rights. To turn the point around: If the group does not respect those liberal rights, then I cannot identify myself as a member; and if I cannot so identify myself, then I am not politically self-governing when I comply with the laws authored by the group. In sum: Advancement of positive liberty through democracy is initially mysterious, but there is a path of clarification and it interestingly happens to pass through holistic-collective agency-the positive freedom of the citizenry taken whole-before landing us safely back in the individualist-liberal constitutional conception of democracy.
As arguments to such conclusions go, this may be one to gladden the civic soul. I wonder, though, whether by any chance such gladdening is all the work that is done by the argument’s circuit through communalism. I want to ask whether this loop is perhaps a conceptual or rhetorical extravagance.
Dworkin’s notion of communalism is not always very robust. A symphony orchestra performance, he says, exemplifies collective agency of the communal kind. It would be a statistical case, reducible to the actions of the players, if it were just a matter of each musician playing the score in time with the conductor’s beat, but it isn’t. Further required for “success” is that the musicians play as an orchestra, each intending to make a contribution to the performance of the group, and each taking part in a collective responsibility for it.
That amounts to an account of what “each” must do and intend. But intention is always an aspect of action-you can’t ever speak intelligibly about what someone is doing without attributing an intention. So where is there here any irreducibility-without-remainder of the group’s performance to the actions of the several players? Dworkin cites the contingency that the performance won’t succeed unless each player cares about the combined effect of all their actions, but that is still not to introduce any “agency” or “entity” that’s “distinct” from them and their actions in the aggregate; they had all-each-just better care in the reciprocatingly right ways about the combined effect.
In one respect the orchestra example’s apparent shallowness may be reassuring to some liberals: It suggests that Dworkin is not here really venturing into “ontological” collectivism,13 but is only, in effect, affirming (or extending) the point that a liberal-individualist anthropology need by no means be (perhaps it cannot be) an atomistic one.14 But now let us ask: What is the analogy between the orchestra example (thus innocuously construed) and the “communal” view of government by the people that Dworkin says is required to make sense of the widely held idea that democracy serves positive liberty? It seems to me that the answer is: None to speak of.
Dworkin’s orchestra stands for the case of an instrumental necessity (for the sake of “success”) of reciprocating sensitivity on a group-membership’s part to the doings (including intentions) of their fellows. What would be the analogies in contemporary individualist-liberal constitutional thought? Maybe the argument of John Rawls that the moral success of constitutional democracy depends on observance by citizens, when they act politically, of a constraint of “civility” or “public reason.” Maybe the concern of Jürgen Habermas to find institutions that can “secure relations of mutual recognition” by providing a trace in daily life of the integrative force of civic friendship based on agreement in reason. Dworkin’s positive-liberty argument is like these examples in the respect that it makes the moral success of democracy-specifically, its furtherance of positive liberty- depend on everyone’s respect for everyone else’s constitutive rights. It is, however, unlike them in making that conclusion depend on an idea we are all supposed to have of an acting entity that’s bigger than any of us. That seems a sort of idea that goes well beyond anything that the orchestra example need be taken to require.
Community, it turns out, does have a load-bearing part in Dworkin’s total case. It supplies the interface between support of judicial authority to declare fundamental-legal meaning and devotion to positive political freedom. Dworkin evidently sought to maintain the substantive-democracy defense of constitutional-court authority, without breaking faith with the widely cherished sense of an essential tie between democracy and positive political freedom. If we see as apt and commendable this effort to keep the faith, we must also be struck by the fact that it took Dworkin on a surprising walk through the valley of the shadow of ontological community, the agency of the people taken whole.
Is there really a need, though, for this purpose, to ascribe agency to the citizenry taken whole? We can read Habermas to offer another way. For suppose we ask: Under what social conditions is it possible for individuals (regarding themselves as free, equal, reasonable, and rational) to find they have reason to affirm the consonance of an existent, coercion-backed political regime with their own, respective moral and other interests? And suppose we conclude that it’s in the nature of that question that answers can’t be adequately specified without recourse to the best approximation of a democratic procedure that we currently have at our joint disposal. We then have the form of the procedural pro-democracy argument that Habermas derives from liberal-individualist premises. This vindication of democracy-as-procedure comes, however, at a cost worth remarking. It involves the very sort of reduction of positive political freedom that Habermas finds regrettable in the work of Rawls: from being a matter of joint active control of the laws to being one of the internal reflective states of individuals.
Bridging positive political freedom with liberal individualism is not a new project. However grateful we may be for these latest efforts and however much we may learn from them, neither yet brings the project to a fully satisfying completion.
1 Thus a theorist may fall on the substantive side of the divide I am concerned with here, even while maintaining that support of democratic procedure is what constitutional rights are for. See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980).
4 Although I don’t think he always has. See Frank I. Michelman, “Judicial Supremacy, the Concept of Law, and the Sanctity of Life,” in Austin Sarat and Thomas R. Kearns, eds., Justice and Injustice in Law and Legal Theory (Ann Arbor: University of Michigan Press, 1996), pp. 139-64.
8 For two somewhat different examples of populist thought in contemporary American constitutional debate, see Akhil Reed Amar, “The Consent of the Governed: Constitutional Amendment Outside Article V,” Columbia Law Review 94 (1994): 457-508; Richard D. Parker, Here the People Rule (Cambridge, MA: Harvard University Press, 1994).
9 It by no means follows that Habermas is an anthropological “atomist,” which of course he’s not. Liberal thought as I am now rendering it easily accommodates, as exemplified by the thought of Habermas, a “relational” view of human beings, one that fully recognizes the importance of groups and relationships in the lives of individuals, the existence of co-dependencies not only among individuals’ interests but among their consciousnesses of self – the “symmetrical relations of recognition,” and their consequences, that are “built into communicatively structured forms of life in general.”
10 Suggesting, for example, such possibilities as that “rational” discourses in D are the set of procedures that issue in unanimous assent to a norm if and only if that norm satisfies U, or that “free” acceptance in U is acceptance that would issue from a D-type rational discourse.
12 As, for example, Article V of our Constitution allows constitutional amendment by concurrent action of the houses of Congress (two-thirds majorities) and the legislatures of the states (three-quarters of them), without unanimity and without any direct submission to the citizenry at large.
Originally published in the October/ November 1996 issue of Boston Review