#19663 - 4.C.I. Critical Theories Democracy Deliberative Democracy - Jurisprudence

Deliberative Democracy

LECTURE(s)

• The topic today will be DELIBERATIVE DEM (versus RADICAL DEM)

Democracy and social contract thought

• SC try to offer LEGIT for modern State – they don’t use DEM directly, however

• Some claim SC is a DEM idea

  • Hobbes assumes that there’s no longer a divine justification for existing state of affairs – we’re all roughly equal = sounds quite DEM

    • BUT his idea is ultimately quite authoritarian

  • Kant says we’re all free and equal = sounds DEM

    • BUT he too is not DEM

• Yes – we aren’t ruled by some God (quite DEM)

• No – if justifying surrender of authority (not DEM)

  • Permanence of basic AGR/authority

  • Surrender ignores/entrenches inequality

  • False binary – accept, or there is anarchy

    • Kant isn’t so dramatic – either you accept, or assert your will over others

• Hobbes – DEM = factionalism and chaos

• Kant – every GOV is LEGIT

• Kant + Hobbes – response to problem of disorder is authoritarian

• Kant + Hobbes – ALIENATION theory = an umpire decides

• Even Rawls, who is less extreme, presumes, rather than argues DEM

• SC – we need a State, for “natural” reasons = State is justified AS IF freely chosen

• Rousseau is more relevant to DEM tradition - republicanism is oft associated with DEM

  • There is DEM reading of GW

  • BUT he was actually ambivalent to DEM

    • You need more than DEM – you need a community that is one with itself; reconciled through some common language, cultural similarity, etc.

      • In Swiss city-state, you don’t really need DEM

    • Focus is on popular SOV, self-legislation, political EQ = otherwise, we are in a master/slave RELAT

Democracy

• DEM is more demanding – it’s not only about controlling power

  • We need to be AUTHORS of our laws, not editors

• DEM is also more realistic about actual exercise of power – we think about who is pulling the strings = power (kratos) is key to DEM

• There is also optimism about what might be possible in future

• A sense of collective RESP

• Of the people, by the people, for the people

• Equal stake in power; collective freedom to make/remake laws and INSTs

• Equality and freedom not merely as presuppositions, but as a way of people constantly being able to govern themselves

Demos + Kratos

• “The People” = people who are powerless; those who aren’t represented

• “Power” = more than merely legal equality as subject; exercise of power in public realm – participation in lawmaking is crucial

Why Democracy?

• For some, it’s pragmatic = good way of responding to DISAGR

• For others, it tends towards better GOV/accountability = it gives better results

  • Highly contingent – e.g., if authoritarian GOV gets better results

• Others, however, focus on its INSTRINSIC value

  • Takes seriously idea of autonomy

  • Equal rights obtained via DEM struggle (over time)

  • Political power:

    • Deliberation in public sphere

    • Real capacity to decide

Habermas

• Habermas focuses on deliberation

• Enlightenment got it partially right, BUT there’s also a whole other set of ideas which have to be changed; Frankfurt School

  • Critical theory, but post-Marxist

    • Focus on culture, rather than materialism

    • From social conditions to consciousness

  • End of historical materialism

    • Linear story of Marx is wrong = no REV

    • CAP becomes quite flexible – no collapse; becomes less harsh

    • Instead of CAP leading to communism, in GER it leads to fascism

  • BUT CAP maintains an alienating system (even though flexible)

    • Consumerism and conformism occurs

  • New agent of change – “upper-middle class artistic avant-garde”

    • It isn’t about the working class; REV impulse only in marginalized group

• Habermas is a second-generation Frankfurt thinker

• Enlightenment as an unfinished project = let’s not abandon reason and progress – resurrects the Kantian tradition, but in a new light:

  • INTERSUBJECTIVE faith in reason – between people

    • Reason isn’t some OBJ knowledge, but it’s something we can strive towards

    • Thinks of “communicative action”

      • We can reach RAT consensus via deliberation (argumentation) – ideally, we reach a RAT consensus

      • We should retain concept of truth, validity – a comprehensive doctrine is still needed

        • BUT these aren’t metaphysical, but intersubjective – truth is something that’s attained via deliberation

• Habermas creates a theory of LEGIT authority = PROCEDURAL account of DEM

• DEM as only post-metaphysical form of LEGIT; addressees of law must be able to see themselves as authors

  • Critical in terms of AUT

Three models of democracy

• Liberal

  • Starts from individual rights – freedom from interference = NEGATIVE

  • Individual as the rights-bearer/consumer/preference maximizer

    • Each person has a certain sphere of personal liberty that can’t be touched

  • BUT if all you need is a property-protecting State, why DEM?

    • DEM PROGRAMMES GOV in interests of SOC

    • Marketplace of ideas; competition for votes

  • Liberalism MARGINALIZES DEM

• Republican

  • Individual rights = POSITIVE

  • We aren’t merely aggregating preferences – we are trying to create a common good

  • REP goes wrong because it thinks that common good needs homogeneity

    • DEM is there to identify what already unites us a people

• Liberalism is THIN; republicanism is too THICK – Habermas wants to UNITE them

  • Likes liberal focus on universalism (each person is an AGE of RAT thought), and likes REP insistence on an ethic of citizenship (but no reason to confine that to a small, homogenous SOC) – POST-NATIONALISM is needed

• Third model: DELIBERATIVE model

  • REP assumes what we need to achieve – a convergence of ethical convictions

    • This cannot be presupposed; BUT our ability to reach AGR is presupposed

  • We need to COME ABOUT a convergence of ethical convictions – can’t be presupposed (like REP does), we need COMMUNICATION to do this

    • Speech = gives us the innate ability to reach consensus – we become enlightened through discussion with out peers

Discourse Ethics

• We get to a better stage (ideal) by engaging in discussion with our peers

• Three-stage model:

  • Natural state social state political state

  • Isolated man competitive man ethical man

• Inclusion, sincerity, and equality is needed

• When we speak to one another, we do at least assume that there is a possibility of understanding – even if you refute someone, you presume there’s a right or wrong

Discourse Principle

• Only those norms to whom participants in rational discourses could agree to are valid

• This principle applies to both moral and legal norms, BUT:

  • Legal norms – COERCIVELY enforced, apply within PARTICULAR community, and they are AUTONOMOUSLY determined (not literal authoring, like with morals)

Law v Morality

• Law is critical in modern SOC – way of achieving some sort of solidarity with one another

  • In small SOC, we can get by via trust, friendship, etc. = not in modern SOC; we address this through legal system - solidarity with strangers is secured only via law

    • With legal norms, split between authors and addressees

      • BUT if addressees see themselves as authors, AUT is maintained = if we see ourselves as authors, we are abiding coz of respect, not coz of coercion

• Since addressees see themselves as authors, autonomy is retained

  • We abide by laws therefore not merely because of sanction

Co-originality of private and public spheres

• Goal = we deliberate, in conditions of sincerity, and if so, we’ll reach RAT consensus; so how do this?

  • Each sphere is important for our AUT (private and public) - they are actually co-original

• We are given legal rights by the system, BUT we must think of them as coming from exercise of our public autonomy (via our civic rights) = legal rights + DEM legislation are equally important for LEGIT law

• LEGIT is forward-looking = the idea is that we can self-correct

Internal Relation of Law and Democracy

• We don’t deliberate directly (unless in small SOC) – we have various processes

  • Opinions/information is exchanged in the public sphere; this is then converted into will-formation in the political sphere

• Kant doesn’t tell us when interference becomes wrong (Sangiovanni) – Habermas answers this = that’s why we have DEM; DEM gives content to Kant’s UPR

Deliberative Democracy

• There is a role for DEM which means that LEGIT of regime is dependent on DEM process

• Political LEGIT is an INDEP virtue; it’s not that DEM will provide security, welfare, etc. = it’s important that we have this exercise of DEM opinion/will-formation

  • Through doing this can we unite the two goals of rationality and LEGIT

    • Rationality – attempt to have correct answer

    • LEGIT – answer that we can all acknowledge

• GW in DEM sense isn’t just a majority vote – the DISCUSSION is more important; yes, you do have to decide at some point, BUT what’s more important is for there to be a process which enables this exchange of opinion

  • Obviously, discourse will never be ideal, but it can be approximated in DEM

Value of deliberation

• It’s important because it enables us to find out what others think (may change our views) = enlarges our mentality

• Another reason is that it gets better results – epistemic authority

  • The more people are involved, the higher the likelihood you’ll get a better result

    • Wisdom that comes with the crowd

• This is a RATIONAL consensus, not an overlapping one = process of deliberation

READING(s)

Handout

• In philosophical (PHI) tradition, value of DEM is more than mere preference aggregation and bare majoritarianism

• DEM is not merely instrumentally valuable = it has INTRINSIC worth

  • Only regime that fully respects persons as free and equal

Deliberative Democracy

• For link between LIB and REP to be made (Habermas), role of public...