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REALISM AND MORALISM IN POLITICAL THEORY
TWO MODELS OF POLITICAL THEORY
I start with two rough models of political theory (or philosophy: the distinction is not important here) with respect to the relation of morality to political practice. One is an enactment model. The model is that political theory formulates principles, concepts, ideals, and values; and politics (so far as it does what the theory wants) seeks to express these in political action, through persuasion, the use of power, and so forth. This is not necessarily (although it is usually) a distinction between persons. Moreover, there is an intermediate activity which can be shared by both parties: this shapes particular conceptions of the principles and values in the light of the circumstances, and devises programmes that might express those conceptions.
The paradigm of a theory that implies the enactment model is Utilitarianism. Unless it takes its discredited Invisible Hand form (under which there is nothing for politics to do except to get out of the way and get other people out of the way), this also presents a very clear version of something always implicit in the enactment model, the panoptical view: the theory's perspective on society is that of surveying it to see how it may be made better.
Contrast this with a structural model. Here theory lays down moral conditions of co-existence under power, conditions in which power can be justly exercised. The paradigm of such a theory is Rawls's. In A Theory of Justice (TJ) itself, the theory also implied a certain amount about the ends of political action, because of implications of applying the Difference Principle: though, interestingly, even there it was presented less in terms of a programme, and more in terms of a required structure. In Political Liberalism (PL) and the writings that led up to it, this aspect is less prominent.1 This is because Rawls wants to make a bigger gap than TJ allowed between two different conceptions: that of a society in which power is rightfully exercised (a well-ordered society), and that of a society that meets liberals' aspirations to social justice. (This distinction may imply various others: human/political/economic rights etc.)
Differences between these two models are of course important. But my concern here is with what they have in common, that they both represent the priority of the moral over the political. Under the enactment model, politics is (very roughly) the instrument of the moral; under the structural model, morality offers constraints (in TJ, very severe constraints) on what politics can rightfully do. In both cases, political theory is something like applied morality.
This is still true in Rawls's more recent work. He indeed says that "in TJ a moral doctrine of justice, general in scope, is not distinguished from a strictly political theory of justice" (PL, xv), and he sets out to articulate a political conception. But he also says, revealingly, "such a conception is, of course, a moral conception" (PL, 11); it is one that is worked out for a special subject, the basic structure of society. Its further marks are that it is independent of a comprehensive doctrine, and that it marshals ideas implicit in the public culture of a democratic society. The supposedly political conception, then, is still a moral conception, one that is applied to a certain subject matter under certain constraints of content.
Rawls holds that the stability of a democratic pluralistic society is, or should be, sustained by the moral psychology of citizens living within an overlapping consensus (PL, 141). There must be a question whether this is an appropriate or plausible answer: it is a matter of history, or political sociology, or some other empirical inquiry. But in any case, Rawls is not merely giving an answer to the question of stability in terms of citizens' morality; he is giving a moral answer. This comes out in his repeated claim (for example, PL, 147) that the conditions of pluralism under which liberalism is possible do not represent "a mere modus vivendi." Rather, the basis of co-existence, and the qualities elicited by these conditions, include the highest moral powers, above all a sense of fairness. Rawls contrasts "a mere modus vivendi" with the principled basis of his own pluralism, and he takes it to cover, not only a Hobbesian standoff of equal fear, but also equilibria based on perceptions of mutual advantage. That these options are grouped together implies a contrast between principle and interest, or morality and prudence, which signifies the continuation of a (Kantian) morality as the framework of the system.2
I shall call views that make the moral prior to the political, versions of "political moralism" (PM). PM does not immediately imply much about the style in which political actors should think, but in fact it does tend to have the consequence that they should think, not only in moral terms, but in the moral terms that belong to the political theory itself. It will be familiar how, in various ways, PM can seek to ground liberalism. I shall try to contrast with PM an approach which gives a greater autonomy to distinctively political thought. This can be called, in relation to a certain tradition, "political realism." Associated with this will be a quite different approach to liberalism. (This is related to what the late Judith Shklar called "the liberalism of fear," but I do not develop that aspect of it here.)3
THE FIRST POLITICAL QUESTION
I identify the "first" political question in Hobbesian terms as the securing of order, protection, safety, trust, and the conditions of cooperation. It is "first" because solving it is the condition of solving, indeed posing, any others. It is not (unhappily) first in the sense that once solved, it never has to be solved again. This is particularly important because, a solution to the first question being required all the time, it is affected by historical circumstances; it is not a matter of arriving at a solution to the first question at the level of state-of-nature theory and then going on to the rest of the agenda. This is related to what might count as a "foundation" of liberalism.
It is a necessary condition of legitimacy (LEG) that the state solve the first question, but it does not follow that it is a sufficient condition. There are two different sorts of consideration here. Hobbes did, very roughly, think that the conditions for solving the first problem, at least in given historical circumstances, were so demanding that they were sufficient to determine the rest of the political arrangements. In this sense, he did think that the necessary condition of LEG was also the sufficient condition of it; someone who disagrees with this may merely be disagreeing with Hobbes on this point.
If one disagrees with Hobbes, and thinks that more than one set of political arrangements, even in given historical circumstances, may solve the first question, it does not strictly follow that the matter of which arrangements are selected makes a further contribution to the question of LEG, but it is entirely reasonable to think that this can make a contribution, and that some, but only some, of such arrangements are such that the state will be LEG.
Even Hobbes, of course, did not think that a LEG state could be identical with a reign of terror; the whole point was to save people from terror. It was essential to his construction, that is to say, that the state--the solution--should not become part of the problem. (Many, including Locke, have thought that Hobbes's own solution does not pass this test.) This is an important idea: it is part of what is involved in a state's meeting what I shall call the Basic Legitimation Demand (BLD).
THE BASIC LEGITIMATION DEMAND
Meeting the BLD is what distinguishes a LEG from an ILLEG state. (I am not concerned with cases in which the society is so disordered that it is not clear whether there is a state.) Meeting the BLD can be equated with there being an "acceptable" solution to the first political question. I shall say some more about what counts as "acceptable." It is important, first, to distinguish between the idea of a state's meeting the BLD, and its having further political virtues (e.g., its being a liberal state). I mean that these are two different ideas, and in fact I think there manifestly have been, and perhaps are, LEG non-liberal states. However, this does not exclude the possibility that there might be circumstances in which the only way to be LEG involved being liberal. This relates to the question of extra conditions on LEG, and, as I said, I shall come back to this.
I shall claim first that merely the idea of meeting the BLD implies a sense in which the state has to offer a justification of its power to each subject.
First, one or two definitions:
(a)\ For these purposes, the subject of a state is anyone who is in its power, whom by its own lights it can rightfully coerce under its laws and institutions. Of course this is not satisfactory for all purposes, since a state can claim too many people, but I shall not try to pursue this question. I doubt that there is any very general answer of principle to the question of what are the proper boundaries of a state.
(b) "What someone can fear" means what someone would reasonably be afraid of if it were likely to happen to him/her in the basic Hobbesian terms of coercion, pain, torture, humiliation, suffering, death. (The fear need not necessarily be of the operations of the state.)
(c) Call being disadvantaged with regard to what one can fear, being "radically disadvantaged."
Suppose a group of subjects of the state--within its borders, required to obey its officials, and so forth--who are radically disadvantaged relative to others. At the limit, they have virtually no protection at all, from the operations of either officials or other subjects. They are no better off than enemies of the state. There may be something that counts as a local legitimation of this. But is it LEG? Is the BLD satisfied?
Well, there is nothing to be said to this group to explain why they shouldn't revolt. We are supposing that they are not seen as a group of alien people captured within the boundaries of the state. (The citizens of ancient Sparta regarded the Helots openly as enemies, and in at least one period, the Spartan officials, on taking office, renewed a declaration of war against them. The frequent Helot "revolts" were thus simply attempts to fight back.) We suppose, contrary to this, that there is an attempt to incorporate the radically disadvantaged group as subjects. I propose that in these circumstances the BLD, to this extent, has not been met.
So we have:
(a) Mere incompetence to protect a radically disadvantaged group is an objection to the state.
(b) The mere circumstance of some subjects' being de facto in the power of others is no legitimation of their being radically disadvantaged. This implies that slavery is imperfectly legitimated relative to a claim of authority over the slaves: it is a form of internalized warfare, as in the case of the Helots.
It may be asked whether the BLD is itself a moral principle. If it is, it does not represent a morality which is prior to politics. It is a claim that is inherent in there being such a thing as politics: in particular, because it is inherent in there being first a political question. The situation of one lot of people terrorizing another lot of people is not per se a political situation: it is, rather, the situation which the existence of the political is in the first place supposed to alleviate (replace). If the power of one lot of people over another is to represent a solution to the first political question, and not itself be part of the problem, something has to be said to explain (to the less empowered, to concerned bystanders, to children being educated in this structure, etc.) what the difference is between the solution and the problem, and that cannot simply be an account of successful domination. It has to be something in the mode of justifying explanation or legitimation: hence the BLD.
The answer is all right as far as it goes, but more needs to be said about how a demand for justification arises, and how it may be met. One thing can be taken as an axiom, that might does not imply right, that power itself does not justify. That is to say, the power of coercion offered simply as the power of coercion cannot justify its own use. (Of course, the power to justify may itself be a power, but it is not merely that power.) This principle does not itself determine when there is a need for justification (for instance, it does not imply that a Hobbesian state of nature violates rights). It does do something to determine, when there is a demand for justification, what will count as one. We cannot say that it is either a necessary or a sufficient condition of there being a (genuine) demand for justification, that someone demands one. It is not sufficient, because anyone who feels he has a grievance can raise a demand, and there is always some place for grievance. It is also not a necessary condition, because people can be drilled by coercive power itself into accepting its exercise. This, in itself, is an obvious truth, and it can be extended to the critique of less blatant cases. What may be called the critical theory principle, that the acceptance of a justification does not count if the acceptance itself is produced by the coercive power which is supposedly being justified, is a sound principle: the difficulty with it, of making good on claims of false consciousness and the like, lies in deciding what counts as having been "produced by" coercive power in the relevant sense.
However, one sufficient condition of there being a (genuine) demand for justification is this: A coerces B and claims that B would be wrong to fight back: resents it, forbids it, rallies others to oppose it as wrong, and so on. By doing this, A claims that his actions transcend the conditions of warfare, and this gives rise to a demand for justification of what A does. When A is the state, these claims constitute its claim of authority over B. So we have a sense in which the BLD itself requires a legitimation to be given to every subject.
There can be a pure case of internal warfare, of the kind invoked in the case of the Helots. There is no general answer to what are the boundaries of the state, and I suppose that there can in principle be a spongiform state. While there are no doubt reasons for stopping warfare, these are not the same reasons, or related to politics in the same way, as reasons given by a claim for authority. In terms of rights, the situation is this: first, anyone over whom the state claims authority has a right to treatment justified by the claim of LEG; second, there is no right to be a member of a state, if one is not a member--or, at any rate, no such right that follows from just this account; third, there is no claim of authority over enemies, including those in the situation of the Helots. In virtue of this last point, such people do not have a right of the kind mentioned in the first point. However, crimes against stateless persons are surely crimes, and Helot-like slavery surely violates rights, and this will require a more extended account in terms of the desirable extent of living under law (and hence of the political). However, the significant cases for the present problems are those in which the radically disadvantaged are said to be subjects and the state claims authority over them.
However, this will not exclude many legitimations which will not be satisfactory from a liberal point of view. How do we get to liberalism?
Liberals will, first, raise the standards of what counts as being disadvantaged. This is because they raise their expectations of what a state can do; moreover they adopt, perhaps because they are in a position to adopt, more demanding standards of what counts as a threat to people's vital interests, a threat in terms of the first problem itself; they take more sophisticated steps to stop the solution becoming part of the problem. They recognize, for instance, rights of free speech; in the first instance, because it is important that citizens and others should know whether the BLD is being met.
Liberals will also add at least the following:
(a) Rationalizations of disadvantage in terms of race and gender are invalid. This is partly a question of how things are now, but it also reflects the fact that only some rationalizations are even intelligible. Those associated with racism, and the like, are all false or by everyone's standards irrelevant. It is also important that acceptance of them by the dominating party is readily explained, while their being accepted by the dominated is an easy case for the critical theory principle.
(b) Hierarchical structures which generate disadvantage are not self-legitimating. Once the question of their legitimacy is raised, it cannot be answered simply by their existence (this is a necessary proposition, a consequence of the axiom about justification: if the supposed legitimation is seen to be baseless, the situation is one of more coercive power). In our world, the question has been raised (this is an historical proposition).
We can say at this point that liberalism imposes more stringent conditions of LEG; that non-liberal states do not now in general meet the BLD. This can be seen in the light of the point just made, that when the "legitimations" of hierarchical states are perceived to be mythical, the situation approximates to one of unmediated coercion.
SUMMARY OF CONSIDERATIONS ABOUT THE BLD
The claim is that we can get from the BLD a constraint of roughly equal acceptability (acceptability to each subject); and that the BLD does not represent morality prior to politics. But we get beyond this to any distinctively liberal interpretation only given further assumptions about what counts as legitimation. It will be seen that these further conditions contain rejections of some things that certainly have been accepted as legitimations in the past. Moreover, they refer to demands for legitimations where no such demands were made in the past.
So the general position can be summarized:
(a) We reject PM, which claims the priority of the moral over the political. This is to reject the basic relation of morality to politics as being that represented either by the enactment model or by the structural model. It does not deny that there can be local applications of moral ideas in politics, and these may take, on a limited scale, an enactment or a structural form.
(b) At the basic level, the answering of the "first" question does involve a principle, the BLD. The approach is distinguished from that of PM by the fact that this principle, which comes from a conception of what could count as answering a demand for justification of coercive power, if such a demand genuinely exists, is implicit in the very idea of a legitimate state, and so is inherent in any politics. The satisfaction of the BLD has not always or even usually, historically, taken a liberal form.
(c) Now and around here the BLD together with the historical conditions permit only a liberal solution: other forms of answer are unacceptable. In part, this is for the Enlightenment reason that other supposed legitimations are now seen to be false and in particular ideological. It is not, though it is often thought to be, because some liberal conception of the person, which delivers the morality of liberalism, is or ought to be seen to be correct.
(d) Inasmuch as liberalism has foundations, it has foundations in its capacity to answer the "first question" in what is now seen, granted these answers to the BLD, as an acceptable way. Insofar as things go well, the conceptions of what is to be feared, of what is an attack on the self, and of what is an unacceptable exercise of power, can themselves be extended. This may indeed be explained in terms of an ethically elaborated account of the person as having more sophisticated interests, which may involve, for instance, a notion of autonomy. This account might be, or approximate to, a liberal conception of the person. But this is not the foundation of the liberal state, because it is a product of those same forces that lead to a situation in which the BLD is satisfied only by a liberal state.
This picture will help to explain two things. First, one can invoke a liberal conception of the person in justifying features of the liberal state (they fit together), but one cannot go all the way down and start from the bottom.4 Second, it sheds some light on the important fact that liberalism has a poor account, or in many cases no account, of the cognitive status of its own history. PM has no answer in its own terms to the question of why what it takes to be the true moral solution to the questions of politics, liberalism, should for the first time (roughly) become evident in European culture from the late seventeenth century onward, and why these truths have been concealed from other people. Moralistic liberalism cannot plausibly explain, adequately to its moral pretensions, why, when, and by whom it has been accepted and rejected. The explanations of the various historical steps that have led to the liberal state do not show very persuasively why or how they involved an increase in moral knowledge; but from here, with our conception of the person, the recognition of liberal rights indeed looks like a recognition.
THE NATURE AND POINT OF THE CONCEPT OF LEG
It may help to explain the idea of LEG that I am using if I relate it briefly to some ideas of Habermas, with whom I am partly, but only partly, in agreement. First, there is the basically sociological point, that the legitimations appropriate to a modern state are essentially connected with the nature of modernity as the social thought of the past century, particularly that of Weber, has helped us to understand it. This includes organizational features (pluralism, etc., and bureaucratic forms of control), individualism, and cognitive aspects of authority (Entzauberung). I have already referred to the last. To make my view even cruder than it is anyway, it could be expressed in the slogan LEG + Modernity = Liberalism, where the ambiguities of the last term serve to indicate a range of options which make political sense in the modern world: they are all compatible with the Rechtstaat, and they vary depending on how much emphasis is put on welfare rights and the like.
Second, my rejection of PM, though not in quite the same terms, is shared with Habermas; I, like him, reject the derivation of political LEG from the formal properties of the moral law, or from a Kantian account of the moral person (though he makes more of the concept of autonomy than I do, and I shall come to that, on the subject of representation). Equally, though I have not stressed the point here, I reject as he does what he calls an "ethical" derivation, that is to say, a civic republican conception of the polity based on neo-Aristotelian or similar considerations.5
Taking these two points together--the facticity of modern societies and the refusal of a mere moral normativity--I can agree with Habermas also in trying to situate these issues "Between facts and norms."6 Moreover, this is not merely a verbal agreement: the project of taking seriously in political theory an understanding of what modern social formations are is very fundamental. However, we clearly have different ideas of how a space is to be found between facts and norms. Habermas uses discourse theory; in my case what does this work is the all-purpose concept of LEG (together with the associated idea of its specific historical determinations).
However, Habermas's conceptions of legitimacy carry stronger universalistic implications than does the notion of LEG that I am using. So let me say some more about this notion; in particular, to locate it between facts and norms.
If, very roughly speaking indeed, LEG + Modernity = Liberalism, this gives no ground for saying that all non-liberal states in the past were ILLEG, and it would be a silly thing to say. It may be asked, in fact, what the point, or content, is of wondering whether defunct political orders were LEG. Political moralism, particularly in its Kantian forms, has a universalistic tendency which encourages it to inform past societies about their failings. It is not that these judgements are, exactly, meaningless--one can imagine oneself as Kant at the court of King Arthur if one wants to--but they are useless and do not help one to understand anything. The notion of LEG, however, distinguished from the idea of what we would now find acceptable, can serve understanding. It is a human universal that some people coerce or try to coerce others, and nearly a universal that people live under an order in which some of the coercion is intelligible and acceptable, and it can be an illuminating question (one that is certainly evaluative, but not normative) to ask how far, and in what respects, a given society of the past is an example of the human capacity for intelligible order, or of the human tendency to unmediated coercion.
We can accept that the considerations that support LEG are scalar, and the binary cut LEG/ILLEG is artificial and needed only for certain purposes.7 The idea is that a given historical structure can be (to an appropriate degree) an example of the human capacity to live under an intelligible order of authority. It makes sense (MS) to us as such a structure. It is vital that this means more than it MS. Situations of terror and tyranny MS: they are humanly entirely familiar, and what the tyrant is doing MS (or may do so), and what his subjects or victims do MS. The question is whether a structure MS as an example of authoritative order. This requires, on the lines already explained, that there is a legitimation offered which goes beyond the assertion of power; and we can recognize such a thing because in the light of the historical and cultural circumstances, and so forth, it MS to us as a legitimation.
"MS" is a category of historical understanding--which we can call, if we like, a hermeneutical category. There are many difficulties of interpretation associated with it, for example whether there are not some historical constellations of belief which altogether fail to MS. (We are probably wise to resist that conclusion:as R. G. Collingwood says, "we call them the Dark Ages, but all we mean is that we cannot see.") The point is that these are general problems in historical and more broadly social understanding.
One can say, as I have said, that "MS" is itself an evaluative concept; certainly, it is not simply "factual" or "descriptive." This is part of the general theory of interpretation, and I cannot address it here. What it certainly is not, is normative: we do not think, typically, that these considerations should guide our behaviour, and there is no point in saying that they ought to have guided the other people's behaviour, except in exceptional cases where there was a clash of legitimations, of which, in the light of the circumstances, one more MS (as it seems to us) than the other.
But when we get to our own case, the notion "MS" does become normative, because what (most) MS to us is a structure of authority which we think we should accept. We do not have to say that these previous societies were wrong about all these things, though we may indeed think, in the light of our entzaubert state, that some of what MS to them does not MS to us because we take it to be false, in a sense that represents a cognitive advance--a claim which carries its own responsibilities, in the form of a theory of error, something which PM in its current forms has spectacularly tended to lack.
In any case, there is no problem about the relation between the "external" and non-normative "MS" that we apply to others, and the "MS" we use about our own practices, which is normative: this is because of the hermeneutical principle, which is roughly that what they do MS if it would MS to us if we were them. In the light of this, it would be actually inconsistent to deny that when we apply "MS" to ourselves, we have a normative notion what MS. The same follows for LEG; what we acknowledge as LEG, here and now, is what, here and now, MS as a legitimation of power as authority; and discussions about whether it does MS will be engaged, first-order discussions using our political, moral, social, interpretive, and other concepts. Much of the time, in ordinary life, we do not discuss whether our concepts MS, though, of particular ones, we may. Mostly, the fact that we use these concepts is what shows us that they MS.
THE CONCEPT OF THE POLITICAL
I have not done much to define the concept of the "political" that I have been using. In particular, it may be unclear how it is related to a realist conception of political action. It will probably be clear that my view is in part a reaction to the intense moralism of much American political and indeed legal theory, which is predictably matched by the concentration of American political science on the coordination of private or group interests: a division of labour which is replicated institutionally, between the "politics" of Congress and the principled arguments of the Supreme Court (at least as the activities of the Supreme Court are primarily interpreted at the present time). That view of the practice of politics, and the moralistic view of political theory, are made for each other. They represent a Manichaean dualism of soul and body, high-mindedness and the pork barrel, and the existence of each helps to explain how anyone could have accepted the other.
I want a broader view of the content of politics, not confined to interests, together with a more realistic view of the powers, opportunities, and limitations of political actors, where all the considerations that bear on political action--both ideals and, for example, political survival--can come to one focus of decision (which is not to deny that in a modern state they often do not). The ethic that relates to this is what Weber called Verantwortungsethik, the ethic of responsibility.
Rather than trying to give a definition of the political, which would certainly be fruitless, let me end by giving two applications--ways in which thinking "politically" changes the emphasis as contrasted with what I have called PM. One relates to the conduct of political thought, and specifically political theory itself; the other to the way we should think about other societies.
PM naturally construes conflictual political thought in society in terms of rival elaborations of a moral text: this is explicit in the work of Ronald Dworkin. But this is not the nature of opposition between political opponents. Nor can the elaboration of one's own position take this form. (It is helpful to consider the idea of the "ideal" or "model" readers of a political text. PM typically takes them to be utopian magistrates or founding fathers, as Plato and Rousseau did, but this is not the most helpful model now.8 They are better seen as, say, the audience of a pamphlet.)
We can, after all, reflect on our historical situation. We know that our and others' convictions have to a great degree been the product of previous historical conditions, and of an obscure mixture of beliefs (many incompatible with one another), passions, interests, and so forth. Moreover, the joint outcome of these things has often been that political schemes had perverse results. We can now see to some extent how these convictions came about, and why they worked if they did and didn't work when they didn't; and we would be merely naive if we took our convictions, and those of our opponents, as simply autonomous products of moral reason rather than as another product of historical conditions. Even in the very short term, a minority conception can become mainstream or vice versa, and there can be significant changes in what counts as a conceivable or credible option. This does not mean that we throw our political convictions away: we have no reason to end up with none, or with someone else's. Nor does it mean that we stare at our convictions with ironical amazement, as Rorty suggests. But we do treat them as political convictions which determine political positions, which means, for one thing, that we acknowledge that they have obscure causes and effects.
It also means that we take certain kinds of view of our allies and opponents. Even if we were utopian monarchs, we would have to take into account others' disagreement as a mere fact. As democrats, we have to do more than that. But remembering the points about the historical conditions, we should not think that what we have to do is simply to argue with those who disagree: treating them as opponents can, oddly enough, show more respect for them as political actors than treating them simply as arguers--whether as arguers who are simply mistaken, or as fellow seekers after truth. A very important reason for thinking in terms of the political is that a political decision--the conclusion of a political deliberation which brings all sorts of considerations, considerations of principle along with others, to one focus of decision--is that such a decision does not in itself announce that the other party was morally wrong or, indeed, wrong at all. What it immediately announces is that they have lost.
Reflection on history should also affect our view of those who agree with us, or seem to do so, or may come to do so. One important political activity is that of finding proposals and images that can reduce differences (just as, in other political situations, it may be necessary to play them up). What people actually want or value under the name of some given position may be indeterminate and various. It can make a big difference, what images we each have of what we take ourselves all to be pursuing.
All these are platitudes about politics, and that is just the point: liberal political theory should shape its account of itself more realistically to what is platitudinously politics.
The same general point, in a different form, applies to our attitude to certain other societies. To some extent, we may regard some contemporary non-liberal states as LEG. This is different from Rawls's point, that we can recognize as well-ordered some non-liberal (e.g., theocratic) societies with which we have certain kinds of principled differences which are limited in certain particular ways (e.g., that they accept the freedom of religion). The present point concerns what turns on regarding them as LEG or not. The idea of "LEG" is normative for us as applied to our own society; so it is also normative in relation to other societies which co-exist with ours and with which we can have or refuse to have various kinds of relations: they cannot be separated from us by the relativism of distance. So there can be practical consequences of applying or withholding "LEG" in the contemporary world. Since these consequences must be responsibly considered, they must be considered politically. An important aspect of thinking about this lies in political realist considerations about the stability of such states. For instance:
(a) With whom does the demand for justification arise? It will be a significant question, who does and who does not accept the current legitimation.
(b) If the current legitimation is fairly stable, the society will not anyway satisfy the other familiar conditions on revolt.
(c) The objections to traditional hierarchical setups are typically based in part on the mythical character of the legitimations. Faced with the criticism of these myths, increasing information from outside, and so on, non-liberal regimes may not be able to sustain themselves without coercion. They will then begin to encounter the basic legitimation problem.
(d) This will also apply to what come to be seen as targets of the critical theory principle, accepted social and institutional understandings which increasingly come to appear, now, as more subtle forms of coercion.
It will be seen that the more significant the factors (c) and (d) become, the more coercion may become overt, and the more this happens, the more reason there will be for concern at the level of the BLD. So nothing succeeds like success, with liberal critique as much as anything else. This is one sound application of a general truth (which is important to politics, but not only to politics), the truth discovered by Goethe's Faust: Im Anfang war die Tat, in the beginning was the deed.
MODERNITY AND POLITICAL REPRESENTATION
Faust's axiom--perhaps we can indeed call it Goethe's axiom--applies much more widely in these matters. It applies, for instance, to the question of how much, at what level, can be determined by social and political theory with regard to modern states: in particular, how far idealized conceptions of political relations should play a part. I should like to end with a particular application of that question, to the matter of political representation. This also raises, I think, a possible area of disagreement with Habermas.
It goes without saying that Habermas has offered very deeply and broadly elaborated work on the possibilities of the modern state and what might contribute to its legitimation. My few remarks or suggestions in no way seek to address most of the issues he has elaborated, nor am I competent to do so; the role of law, notably, in the understanding of the modern state is a central concern of his on which I have nothing special to offer. Much of this work, it seems to me, fits together with the kind of structure I have suggested. For instance, it seeks to show in what ways the conditions of modernity--the facticity of modern societies--demand or impose certain conditions on LEG. It shows how some kinds of legal order and not others, and some understandings of a legal order, MS to us. It therefore has a practical and progressive possibility. What I have said here does not directly have such consequences, except in the possible improvement of the way in which we, in particular lawyers, think about such questions. This is because mine is a very general sketch at a very high level of generality. But I salute thought that does yield such consequences, and I agree in this respect with a criticism that Habermas has made of Rawls, that Rawls identifies no project with regard to the establishment of a constitution--it appears only in the role of the non-violent preservation of basic liberties that are already there.
However, Habermas wants to show something else at the level of the most basic theory: that there is an internal relation between the rule of law, the Rechtstaat, and deliberative democracy.
Now certainly I agree--it is a manifest fact--that some kind of democracy, participatory politics at some level, is a feature of LEG for the modern world. One need look no further than the worldwide success of the demand for it. Any theory of modern LEG requires an account of democracy and political participation, and of course such an account may take its place in a programme of improvement. We may be able to say: the point of democratic political participation in relation to our conception of LEG is such-and-such, and developing our institutions and practices in such-and-such ways is what will further MS in terms of what in this area MS to us.
Now Habermas develops this part of his account at a very deep level, in relation to the discourse theory. It would not be to the present point for me to try to engage with the details of his argument. My question concerns the kind of argument that this yields; specifically, whether it does not situate itself a great deal nearer--too near indeed--to the moral rather than the facts. Habermas writes, "[I]t must be reasonable to expect [participants in the political process] to drop the role of the private subject The combination [of facticity and validity] requires a process of law-making in which the participatory citizens are not [his emphasis] allowed to take part simply in the role of actors oriented to success."* So the concept of modern law harbours the democratic ideal, and we derive, more or less, an ideal associated with Kant and Rousseau, while going beyond the merely moral formalism of Kant and--roughly speaking--the ethical and communitarian over-enthusiasm of Rousseau.
But what is this "are not allowed to"? It cannot be blankly normative. Suppose, one is bound to say, that they do? It may be replied: it will defeat the point. But what if it does? And how can we be sure, in the light of the possibility, what the point really is? It may be said, alternatively: it cannot work--in other words, the system will break down, and the political process will begin to lose significance in relation to other activities and the life world.
I want to say at this point two things: if that is so, then it will show itself, and we shall have a manifest social or political problem for which we shall have to mobilize ideas which already MS to the public and might move toward possible political action. Second, it will be only one of many conflicts about what the processes of political participation can be hoped to yield under conditions of modernity. There are needs that people have which seemingly can be met only by more directly participatory structures; but equally, there are objectives which are notoriously frustrated by these, and other aims which are at least in competition with them, and considerations which raise doubts about the extent to which any procedures can be really participatory anyway.
No transcendental or partly transcendental argument--one might say, more generally, theoretical argument--could serve to resolve these conflicts.
My own view is that the minimum requirements of participatory democracy as an essential part of modern LEG are delivered at a fairly straightforward and virtually instrumental level in terms of the harms and indefensibility of doing without it. What is delivered at that level can only speciously be represented in Kantian and Rousseauian terms as either expressions of autonomy or of self-government. To represent it as such may lead to cynicism: while it may be no more than utopian to make larger ambitions which might meet these descriptions--and "self-government" I doubt can be met at all: which is why Rousseau was right to impose impossible conditions on it.
Indeed we should explore what more radical and ambitious forms of participatory or deliberative democracy are possible, which is why I agree that the conditions of LEG in modern states present a progressive project. But how much more is actually possible seems to me a question that belongs to the level of fact, practice, and politics, not one that lies beyond these in the very conditions of legitimacy.
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