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The Institutions of Deliberative Democracy*

Published online by Cambridge University Press:  13 January 2009

William Nelson
William Nelson
Affiliation:
Philosophy, University of Houston
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Extract

A theory of democratic institutions should provide us with a coherent combination of definition and justification. It should explain how it defines democratic institutions and also how they will or should function; but it also should explain why democracy, so understood, is desirable. We are all familiar with stories about the fiscal excesses to which democracies are prone, stories about the ignorance of voters, and stories about the venality of legislators. Some of us may also be suspicious of concepts such as “consent” or “the will of the people” associated with traditional arguments for democracy. Against this background, the current interest in deliberative democracy seems promising. This conception of democracy does not rely, for example, on the idea of rational and knowledgeable voters satisfying preferences they have independent of the political process. Nor does it rely on any notion of an independent popular will. Instead, it offers a picture of the democratic process as one in which men and women engage in constructive discussion, seeking a principled resolution of their differences and developing, over time, a conception of the terms on which they will live with one another.

Type
Research Article
Information
Social Philosophy and Policy , Volume 17 , Issue 1 , Winter 2000 , pp. 181 - 202
Copyright
Copyright © Social Philosophy and Policy Foundation 2000

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References

1 It is obviously a matter of controversy which actual institutions, if any, deserve the name “democratic.” Thus, one can question whether a particular democratic theory supports what some call democratic institutions. When I want to be neutral about the theoretical credentials of putative democracies, I will speak of conventional democracies or of majoritarian systems or institutions.

2 See, e.g., Barber, Benjamin, The Conquest of Politics (Princeton: Princeton University Press, 1988)Google Scholar, and Barber, 's earlier work, Strong Democracy: Participatory Politics for a New Age (Berkeley: University of California Press, 1984)Google Scholar; see also Walzer, Michael, “Philosophy and Democracy,” Political Theory 9, no. 3 (08 1981): 379–99.CrossRefGoogle Scholar

3 Barber, , The Conquest of Politics, 5–7, 18.Google Scholar

4 Ibid., 7.

5 Walzer, , “Philosophy and Democracy,” 383.Google Scholar

6 Ibid., 383, 385.

7 Barber, , The Conquest of Politics, 78–80.Google Scholar

8 Ibid., 90.

9 Walzer, , “Philosophy and Democracy,” 381.Google Scholar

10 Ibid., 386.

11 Cf. Waldron, Jeremy, “A Right to Do Wrong,” Ethics 92, no. 1 (10 1981): 21–39.CrossRefGoogle Scholar

12 Walzer, , “Philosophy and Democracy,” 389.Google Scholar

13 See Ely, John Hart, Democracy and Distrust (Cambridge, MA: Harvard University Press, 1980)Google Scholar; and Bork, Robert, “Neutral Principles and Some First Amendment Problems,” Indiana Law Journal 47, no. 1 (Fall 1971): 1–35Google Scholar. See also Bork, , The Tempting of America (New York: The Free Press, 1990).Google Scholar

14 Cohen, Joshua, “Deliberation and Democratic Legitimacy,” in The Good Polity, ed. Hamlin, Alan and Pettit, Philip (Oxford: Blackwell, 1989), 17–34Google Scholar; and Cohen, , “Procedure and Substance in Deliberative Democracy,” in Democracy and Difference, ed. Benhabib, Seyla (Princeton: Princeton University Press, 1996), 95–119.Google Scholar

15 Cohen, , “Deliberation and Democratic Legitimacy,” 17, 20.Google Scholar

16 Ibid., 21–23.

17 Gutmann, Amy and Thompson, Dennis, Democracy and Disagreement (Cambridge, MA: Harvard University Press, 1996), 13, 39, 50.Google Scholar

18 Ibid., 4, 41.

19 Ibid., 4, 43.

20 Cohen, , “Deliberation and Democratic Legitimacy,” 23Google Scholar. I take the idea to be implicit in Gutmann and Thompson's ideals of “reciprocity” and “accountability”—the former requiring that we seek “mutually acceptable” resolutions of conflicts, and the latter that we be prepared to account for our decisions to everyone. See Gutmann, and Thompson, , Democracy and Disagreement.Google Scholar

21 Cohen, , “Procedure and Substance in Deliberative Democracy,” 96.Google Scholar

22 Ibid., 103f.

23 Gutmann, and Thompson, , Democracy and Disagreement, 17, 199–229.Google Scholar

24 Ibid., 200, 17.

25 Ibid., 35–37.

26 Scanlon, T. M., “Contractualism and Utilitarianism,” in Utilitarianism and Beyond, ed. Sen, Amartya K. and Williams, Bernard (New York: Cambridge University Press, 1982), 103–28CrossRefGoogle Scholar. Scanlon takes the idea of contractual agreement, widely invoked in political thought, as part of a basic definition of moral Tightness which he contrasts with the utilitarian conception of Tightness as maximization of the good. Scanlon defines moral Tightness in terms of principles which “no one can reasonably reject.”

27 See the references in notes 46 and 49 below.

28 Larmore, Charles, The Morals of Modernity (New York: Cambridge University Press, 1996), 122.CrossRefGoogle Scholar

29 Rawls, John, Political Liberalism (New York: Columbia University Press, 1993), xviii.Google Scholar

30 Nagel, Thomas, “Moral Conflict and Political Legitimacy,” Philosophy and Public Affairs 16, no. 3 (Summer 1987): 215–40.Google Scholar

31 For a thoughtful critique of this idea, see Sher, George, Beyond Neutrality (New York: Cambridge University Press, 1997)CrossRefGoogle Scholar. In my view, Sher makes a better case for the view that liberal premises do not entail neutrality than for the view that we ought to abandon those premises. I might add that Nagel does not, I think, use the term “neutral,” though he certainly does accept the idea that state power should be used only in ways that can be justified appropriately even to citizens who otherwise differ radically.

32 Larmore, , The Morals of Modernity, 125Google Scholar; Nagel, , “Moral Conflict and Political Legitimacy,” 238–39Google Scholar; Rawls, , Political Liberalism, 214–15.Google Scholar

33 Nagel, , “Moral Conflict and Political Legitimacy,” 218Google Scholar; Larmore, , The Morals of Modernity, 136f., 141Google Scholar; Rawls, , Political Liberalism, 137, 217.Google Scholar

34 Cohen, , “Deliberation and Democratic Legitimacy,” 22.Google Scholar

35 Gutmann, and Thompson, , Democracy and Disagreement, ch. 9Google Scholar. It is too seldom remarked how little Rawls actually says about the content of equal opportunity in the one section of A Theory of Justice actually devoted to this topic. See Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 83–90Google Scholar. See also Nelson, William, “Equal Opportunity,” Social Theory and Practice 10, no. 2 (Summer 1984): 157–84.CrossRefGoogle Scholar

36 Gutmann, and Thompson, , Democracy and Disagreement, 39.Google Scholar

37 See, for example, Scheffler, Samuel, The Rejection of Consequentialism (New York: Oxford University Press, 1994), ch. 4 and appendix 1.CrossRefGoogle Scholar

38 Scanlon, , “Contractualism and Utilitarianism.”Google Scholar

39 This, again, is the way Walzer sees democratic rights; and I also think that, at an abstract level, what Cohen wants to insist on is that the people should govern themselves. More generally, rights arise, as Hart once suggested, in the portion of morality that is especially concerned with the distribution of human freedom. Hart, H. L. A., “Are There Any Natural Rights?” Philosophical Review 64 (1955): 178CrossRefGoogle Scholar. I should add that, while my point is that those with rights, unlike others, are properly in a position to make certain decisions, Hart's point is that those with rights are properly in a position to determine what others may or must do.

40 It is one of the marks of a (mature) legal system that it has rules giving such answers. See Hart, H. L. A., The Concept of Law (Oxford: Oxford University Press, 1961), 89–96.Google Scholar

41 I say “partly” because moral and legal rights are not limited to “claim rights,” definable in terms of the obligations of others, but include powers and immunities as well.

42 See Rawls, , A Theory of Justice.Google Scholar

43 What I say here represents at least a change in emphasis from what I have sometimes said in earlier work. Previously, I have argued against the idea that the intrinsic fairness of procedures justifies them; and I emphasized, instead, the idea that (conventionally) democratic procedures are more likely than others to yield justifiable outcomes. But in the absence of consensus or a serious prospect thereof, I now think that a fair (but not necessarily equal) distribution of authority is more important, and I also emphasize that a variety of systems of authority that are fair overall, may contribute in different ways to justifiable outcomes. See Nelson, William, On justifying Democracy (London: Routledge and Kegan Paul, 1980).Google Scholar

44 I suspect that Gutmann and Thompson are little interested in questions about how political rights ought to be assigned in the first place, but more interested in giving an account of how the rights we have should be exercised.

45 Hardin, Russell, Morality within the Limits of Reason (Chicago: University of Chicago Press, 1988), 92f.Google Scholar

46 Freeman, Samuel, “Constitutional Democracy and the Legitimacy of Judicial Review,” Law and Philosophy 9 (1990): 36.CrossRefGoogle Scholar

47 Contrariwise, if we knew that persons would be reasonable no matter what, then, in a kind of analogy with Coase's theorem, we might conclude that it would not matter what system of rights we institute. (From the perspective of a concern with economic efficiency, Ronald Coase argues, it does not matter how we assign initial rights to property. However we assign rights, agents will trade until a Pareto-optimal distribution is reached. See Coase, , “The Problem of Social Cost,” Journal of Law and Economics 3 [1960]: 1–44.)CrossRefGoogle Scholar

48 For this reason, I think Cohen's metaphorical idea that institutions should “mirror” the deliberative ideal is misleading.

49 Cohen, , “Deliberation and Democratic Legitimacy,” 30–31Google Scholar. See also Mansbridge, Jane, Beyond Adversary Democracy (Chicago: University of Chicago Press, 1983)Google Scholar. In her long discussion of town-meeting democracy (pp. 39–125), Mansbridge details many factors that discourage individual participation—from lack of education to fear of conflict—as well as factors that lead to inequality.

50 For another possibility, see Daniels, Norman and Sabin, James, “Limits to Health Care: Fair Procedures, Democratic Deliberation, and the Legitimacy Problem for Insurers,” Philosophy and Public Affairs 26, no. 4 (Fall 1997): 325, 339CrossRefGoogle ScholarPubMed. While the deliberative ideal informs their approach, they do not argue for (conventionally) democratic methods for deciding about the allocation of scarce resources. Instead, they advocate that those responsible for making decisions, in public or private delivery systems, simply make them in public, according to stated principles, and that they seek to be consistent from one case to another.

51 See Cohen, , “Procedure and Substance in Deliberative Democracy,” 103–4Google Scholar, for arguments that restrictions on religious liberty and on expressive liberties generally cannot be justified to those who care about these liberties.

52 See Freeman, , “Constitutional Democracy and the Legitimacy of Judicial Review.”Google Scholar

53 Jane Mansbridge, if I read her correctly, raises similar concerns about the legitimacy of “real-world” democracies, despite the attractiveness of idealized conceptions, in “Using Power, Fighting Power: The Polity,” in Democracy and Difference, ed. Benhabib, , 46–66.Google Scholar