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Deliberative Democracy in Practice
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Edited by David Kahane, Daniel Weinstock,
Dominique Leydet, and Melissa Williams

Deliberative Democracy in Practice


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UBC Press 2010

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1. Deliberative democracy. I. Kahane, David J. (David Joshua), 1962-

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Contents

Introduction / 1
Daniel Weinstock and David Kahane

Part 1: Educating Deliberative Citizens

1 Conceptions of the Good: Challenging the Premises of Deliberative


Democracy / 21
Micheline Milot

2 Religious Belief, Religious Schooling, and the Demands of Reciprocity / 35


Harry Brighouse

3 Religious Education and Democratic Character / 54


Paul Weithman

Part 2: Deliberative Democracy, Constitutions, and the Boundaries
of Deliberation
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4 Open versus Closed Constitutional Negotiation / 77


Simone Chambers

5 Is Democracy a Means to Global Justice? / 92


James Bohman

Part 3: Deliberative Democracy and Indigenous Peoples

6 Deliberative Democracy and the Politics of Reconciliation / 115


Duncan Ivison

7 Resisting Culture: Seyla Benhabibs Deliberative Approach to the Politics


of Recognition in Colonial Contexts / 138
Glen Coulthard

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vi Contents

8 The Implications of Incommensurability for Deliberative Democracy / 155


Jorge M. Valadez

Part 4: Citizen Dialogue and Decision Making in a Deliberative


Democracy

9 Public Opinion and Popular Will / 177


Henry S. Richardson

10 Consulting the Public Thoughtfully: Prospects for Deliberative


Democracy / 194
James Fishkin

11 The Micropolitics of Deliberation: Beyond Argumentation to


Recognition and Justice / 209
John Forester and David Kahane

References / 232

Contributors / 244

Index / 247
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Introduction
Daniel Weinstock and David Kahane

Deliberative democracy has emerged in recent years as one of the dominant


research paradigms in normative political philosophy. Many contemporary
political theorists claim to be deliberative democrats, yet there are vast areas
of disagreement among them. Despite their differences, deliberative demo-
crats are united in their commitment to two general theses: (1) A thesis about
democracy: that democracy should be understood as the exchange of reasons
rather than merely as the confrontation of contending interests; (2) a thesis
about liberal democracy: that the justification of policies in liberal democracies
should be more democratic. These two theses are pitched at a high level of
generality. Our first order of business will therefore be to unpack them.

Deliberative Democracy as Democracy


North American political science has long been dominated by what has
come to be called the pluralist account of democratic politics. On this
view, democratic politics is principally about the attempts by interest groups
to place pressure on political elites in order to realize their interests to the
Copyright 2010. UBC Press. All rights reserved.

greatest degree possible (Dahl 1998; see Cunningham 2001). This model is
distinguished from deliberative democracy by three main features.

1 Democracy is perceived as a causal rather than a rational process. Dif-


ferent groups use what force they can muster and attempt to apply it
as efficiently as possible to the appropriate institutional levers. Policy
outcomes are thought not to emerge, at their best, from an impartial
point of view but as the mechanical result of contending forces.
2 The interests brought to bear in the democratic arena are pre-politically
formed. We come to the democratic table with a clear and complete
conception of what our interests are, and these interests are formed in
abstraction from the interests of others. No attempt is made by citizens
or by those who represent their interests to think about policy from the
perspective of the general will. The general will, rather, is conceived as

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2 Daniel Weinstock and David Kahane

the unintended consequence of the confrontation of rival interest


groups.
3 Democratic politics is thought of as driven by elites. Citizens engage in
the democratic process by applying pressure on elites rather than by
themselves engaging in the decision-making process.

Against this dominant, pluralist view, deliberative democrats have urged


that democracy be thought of as crucially involving the exchange of reasons.
Participants in the democratic process should aim at a result that reflects
not the balance of contending forces and political skills but the force of the
better argument (Cohen 1989). Reasons are seen as excluding the naked
expression of individual or group interests, taken simply as such. An attempt
has to be made to persuade ones democratic partners, and this requires that
one put forward considerations that they can accept at least in principle;
often deliberative democrats have taken this commitment reasoned persua-
sion to suggest that public reasons must not appeal to controversial concep-
tions of the good life. Citizens must evince reciprocity in their dealings,
putting forward arguments that can be expected to move the democratic
process toward consensus (Gutmann and Thompson 1996).
Deliberative democrats have also urged that participation in the democratic
process should be civic minded rather than privatistic. That is, participants
should not enter the democratic arena with a fully formed conception of
the positions they will ultimately pursue. They should allow themselves to
be swayed by the arguments of others and attempt to view the political
agenda from a vantage point that encompasses the interests of all.
Finally, deliberative democrats tend to advocate an active conception of
citizenship, whereby democratic politics is not the sole preserve of elites.
Deliberative democrats disagree about the specific reasons that make partici-
pation important. Some claim that participation in the democratic process
Copyright 2010. UBC Press. All rights reserved.

by ordinary citizens is an intrinsic good. Others have argued that, though


there is no intrinsic good served by participation, the legitimation and
justification of policies requires deliberation reaching beyond traditional
elite circles. They also disagree about the specific form that participation
should take. Some have argued that the democratic sphere should be re-
formed to give citizens direct access to decision-making processes. Others
have argued that institutional mechanisms must be devised to give political
weight to the deliberation that takes place outside the formal decision-
making arena.

Deliberative Democracy as Justification


Liberal political theory, which has been dominant in Anglo-American pol-
itical philosophy, has been associated, among other things, with a thesis
about the moral justification of policies. Liberals have often made use of

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Introduction 3

contractual reasoning to get the justificatory story started. John Rawls (2001a)
offers the most famous contractual argument, asking us to imagine which
fundamental principles would be agreed on by appropriately circumstanced
individuals deliberating on the terms of their association. Individuals are
appropriately circumstanced when their choice situation embodies the moral
principles that we think, on due reflection, ought to constrain the selection
of principles governing the basic structure of society. The principles arrived
at constrain law making and policy making and even the choice of consti-
tutional structures and principles.
There is an intimate connection between the liberal contractualist project
and the practice of judicial review. Indeed, if the principles that emerge
from the contractualist argument are to have the weight that liberals at-
tribute to them, they must be appropriately institutionalized, and the judicial
review of legislation provides the appropriate institutional form. Judges
have the authority to block legislation that does not conform to the prin-
ciples. The democratic legitimacy of judicial review is grounded in principles
that encapsulate the considered convictions of the people of a liberal dem-
ocracy. Ronald Dworkin, another leading liberal theorist, though he officially
claims to be opposed to contractualist reasoning, is clearly in agreement
with the liberal contractualist argument when he claims that courts, rather
than the democratic arena, should be thought of as the forum of principle
(Dworkin 1985).
Deliberative democrats have contested the liberal project of identifying
moral principles that, once embodied in an appropriate choice situation,
can generate governing political principles to which all reasonable citizens
can agree. Reasonable moral pluralism is deeper than liberals have tended
to assume, and it does not conveniently limit itself to non-political matters.
The reasonable comprehensive conceptions of the good life that citizens
affirm often have deep implications for the manner in which the polity ought
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to be governed.
In the absence of a framework of political norms sufficiently robust and
substantive to generate principles to govern the operation of societys main
political and economic institutions, deliberation is the way forward. In a
nutshell, if no antecedent agreement on political first principles can be
expected in a reasonably diverse society given citizens very different con-
ceptions of the good, the only way the required kind of agreement can be
reached is through discussion. The hope is that citizens of diverse creeds
deliberating in good faith will be able to come up with creative ways of
bridging their differences that could not simply be inferred from placing
their comprehensive doctrines side by side and looking for areas of overlap
and compatibility.
Described in this way, the justificatory claims made by deliberative demo-
crats are an extension of the liberal project. It is unsurprising, therefore, that

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4 Daniel Weinstock and David Kahane

many theorists who embrace deliberative democracy because it fills a lacuna


in liberal theory have incorporated a number of recognizably liberal substan-
tive norms into their conceptions of deliberation. Amy Gutmann and Dennis
Thompson (1996) have famously argued that the results of deliberation
should be consistent with standard liberal commitments to liberty and op-
portunity. They have also argued that deliberating citizens should follow,
in their dealings with one another, a principle of reciprocity, whereby they
abstain from invoking controversial arguments drawn from their particular
conceptions of the good. Instead, they should make use of the resources of
public reason.
Many have found fault with this way of stacking the deliberative deck in
favour of liberal outcomes. Although not necessarily dissenting from liberal
principles per se, many have wondered whether variants of deliberative
democracy such as Gutmann and Thompsons are really deliberative at all,
since outcomes seem to be generated by the constraints on deliberation as
much as by deliberation itself.
An alternative model of deliberative democracy has emerged alongside
the model derived from the liberal project. Although it shares the latters
concern with reason giving, it adopts a much more capacious conception
of allowable reasons. The constraints that it places on deliberation are pro-
cedural rather than substantive. The theorist most often associated with this
view is German philosopher Jrgen Habermas. In his work, deliberative
democracy is part of a larger, much more ambitious, project to do with the
role of communication, and with the gradual overcoming of obstacles to
communication, as a principal driver of human historical development
(Habermas 1985, 1988).
In Habermas view, successful communication assumes that interlocutors
are governed by a number of moral or quasi-moral norms. Communication
could simply not take place without a presumption on all parts that inter-
Copyright 2010. UBC Press. All rights reserved.

locutors are committed to norms of sincerity, truth telling, and the like. We
can imagine an ideal speech situation in which these norms are perfectly
realized, and all mundane communication implicitly refers to this ideal. The
ideal speech situation forms the basis of a species of moral contractualism,
wherein norms are valid to the degree that they could be affirmed by all
within a discourse that met all of the requirements of ideal speech. Habermas
views much political struggle as having to do with the emancipation of
communication from other logics that threaten to drown it out. His oft-
repeated but poorly understood phrase the colonization of the life-world
refers to his concerns that areas of human moral life whose norms ought to
be derived from unfettered communication have in fact been taken over by
economic and technological imperatives and that political action must, to
a large degree, be focused on reclaiming the life-world from the grips of non-
communicative forces.

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Introduction 5

The Habermasian model overcomes some of the difficulties associated


with the liberal one in that it does not overdetermine the substantive results
of deliberation. However, it introduces problems of its own. In particular,
liberals, as well as deliberative democrats of a liberal bent, have worried
about the tendency of a democratic process unfettered by substantive prin-
ciples to generate illiberal results. The concern is that purely procedural
constraints, for example on agenda setting, turn-taking, and sincerity, will
be insufficient to prevent the tyranny of the majority.
Placing as much moral weight as Habermas does on communication might
make sense from within the context of a theory that views the liberation of
communication as an engine of human emancipation. But deliberative demo-
crats who want to detach deliberative democracy from his broader historical
account clearly need a response to the concerns just noted. Interestingly,
Habermas himself (1996) now views individual rights and the kinds of con-
stitutionalism and judicial review that they ground on the one hand and
democratic deliberation on the other as co-originating in a fundamental
moral commitment to human autonomy.

Deliberative Democratic Challenges


Deliberative democracy has been put forward as a way of dealing with prob-
lems with democratic theory and practice as well as with liberal modes of
justification of laws and constitutional principles. As is probably inevitable
for a theory put forth to address separate agendas in political philosophy,
deliberative democracy has yet to achieve full theoretical maturity. A par-
ticularly acute problem has to do with tensions in the account of deliberation
itself.
On the one hand, deliberative democracys opposition to the kind of in-
terest brokering and horse trading that normally occurs in democratic forums,
and for which the pluralist paradigm has provided some theoretical under-
Copyright 2010. UBC Press. All rights reserved.

pinning, pushes the theory toward a rather thick conception of delibera-


tion. As we have seen, to ensure that purely interest-driven politics is ruled
out, deliberative democracy saddles participants in deliberation with sub-
stantial constraints. They must speak the language of public reason, avoid-
ing tying the reasons they put forth too tightly to their particular conceptions
of the good life so as to enable consensus, where consensus means a shared
conception of what the common good requires.
On the other hand, deliberative democrats aim of surpassing traditional
liberalism in how they deal with pluralism pushes in another direction.
Citizens with radically different conceptions of the good need not repair
in their deliberations to a neutral public reason. Indeed, the attempt to
define the contents of such a public language would stumble, like the liberal
project before it, on the impossibility of defining a set of normative prin-
ciples that all reasonable citizens can agree on, whatever their conceptions

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6 Daniel Weinstock and David Kahane

of the good life. Citizens instead need a disposition to identify possible


compromises rather than prolong conflict. They must stand ready to argue
with one another on the basis of, rather than in abstraction from, their
comprehensive conceptions. Only in so doing will they be able to arrive at
agreements, because only in this way will they be able to identify what is
really at issue between them.
Whats more, a deliberative democratic theory that took pluralism seriously
would be much more inclined to view compromise, rather than consensus, as
a natural end of deliberation. It would therefore invest its theoretical energy
in distinguishing morally acceptable compromises from ones that threaten
participants integrity. Making such a distinction might involve exploring
the normative potential of democratic practices that those emphasizing
reason giving and consensus relegated to the seamier margins of deliberative
democratic theory, such as horse trading and interest brokering.
To achieve full theoretical maturity, theorists working within the paradigm
will have to address the tensions that result from deliberative democracys
sometimes duelling sets of desiderata. They will also have to address a range
of issues having to do with what one might call the real world of deliberative
democracy and these are the issues that constitute the focus of the chapters
in this volume. Questions persist about some of the empirical assumptions
implicit in the theory. For example, many deliberative democrats are im-
pressed by the pluralism of conceptions of the good and of worldviews in
modern societies. But it is striking that this pluralism is typically character-
ized by political theorists in a highly abstract way. According to this char-
acterization, at issue are comprehensive conceptions of the good often
presented as if they are rival philosophical theories, whereas what is most
often at stake in the real world of modern liberal democracies is a plurality
of ways of life, experiences, and traditions, which are difficult to spell out
in terms of explicit comprehensive conceptions. How would a more real-
Copyright 2010. UBC Press. All rights reserved.

istic view of social pluralism inflect the project of deliberative democracy


when, for example, it comes to the deeply divergent meanings of culture
and membership that can obtain between indigenous and non-indigenous
citizens of settler societies? And how adequately can deliberative democratic
theory address the interfusion of deep cultural differences with differences
in social power in order to frame principles of deliberation that can justly
address conflicts between, say, indigenous and non-indigenous peoples in
settler states?
Deliberative democracy is also, at this early stage in its development, in-
stitutionally underdescribed. Much still needs to be said about the political
education of deliberative democratic citizens. Deliberative democracy, what-
ever its precise form, places new and greater demands on citizens than
traditional liberal democracy, which at least required citizens to be generally
law abiding and respectful of others and at most required citizens constant

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Introduction 7

vigilance of political elites. Deliberative democracy in almost all of its forms


requires a more active citizenry and one with crucial dispositions, aptitudes,
and virtues. Deliberative democratic citizens must be disposed to seek agree-
ment with other citizens, possess deliberative traits that facilitate this process,
and adopt a questioning, potentially critical, attitude toward their own
conceptions of the good. Plainly, the development of the deliberative demo-
cratic personality requires an ambitious educational project. How does a full
reckoning with the requirements of deliberative democracy change educa-
tional theory and practice?
And, finally, what of the institutions of deliberative democracy themselves?
The idea of a deliberative democracy, especially one in which ordinary cit-
izens play an active role, runs quickly up against the limits imposed by the
sheer size of modern mass societies. As Robert Dahl has shown in an oft-cited
back-of-the-envelope calculation (Dahl and Tufte 1973), meaningful delib-
erative input by all members of a small society on even a fairly uncompli-
cated item of policy would stretch democracys time constraints beyond the
breaking point. Which institutional devices can accommodate meaningful
deliberation without ignoring real-world, temporal constraints? Moreover,
deliberative democrats need to explain the relationship between the institu-
tions of deliberation, whatever they end up looking like, and the already
existing institutional order. In particular, what is the place of liberal consti-
tutional practices in a deliberative democratic order? Deliberative democracy
seems to face an unattractive dilemma: either the animus against contro-
versial liberal principles enforced by a non-neutral institution such as the
court is taken to its logical extreme, in which case deliberative democracy
seems to have insufficient safeguards against the tyranny of the majority,
or (perhaps to forestall such an objection) deliberative democracy constrains
outcomes with the familiar liberal protections of minority and individual
rights and equal opportunity, thus differing from liberal constitutionalism
Copyright 2010. UBC Press. All rights reserved.

only in how it institutionalizes liberal principles.


A premise underlying the selection of themes and essays for this volume
is that, beyond a certain point, progress on foundational philosophical issues
cannot be achieved without attending to more concrete questions of insti-
tutional realization and implementation. In other words, context matters.
The chapters in this volume all join in debates central to the development
of deliberative democratic theory. Which traits of character does the ideal
deliberator possess, and what should the role of the state, via the institution
of public schools, be in inculcating them? Is constitutionalism a help or a
hindrance to the achievement of a truly deliberative polity? How can delib-
erative democratic ideals be instantiated in societies that are both culturally
divided and still deeply affected by the injustices of a colonial past (and,
some would argue, present)? How is deliberation affected in concrete settings
by the different tasks with which deliberators can be presented? Does it make

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8 Daniel Weinstock and David Kahane

a difference to deliberation whether deliberative forums are mandated to


consult or to decide?

Deliberative Democracy in Practice: Key Themes


The chapters in this volume speak to one another across themes by illumin-
ating core concepts and debates within deliberative democratic theory from
distinct and hopefully complementary contexts of application. Before going
into a detailed description of each section, we would like to foreground some
of the most important cross-cutting themes.
A first theme around which debate is joined among various chapters has
to do with the very purpose of deliberative democracy. As we have noted,
deliberative democracy is seen by proponents of both the liberal and Haber-
masian traditions as motivated by value pluralism. From this view, we need
deliberative institutions rather than paradigmatically liberal ones because
only by deliberating will we be able to overcome our moral and ethical dif-
ferences. The chapters in Part 1 take up the task of determining the traits
of character required to deliberate in a polity marked by value pluralism,
and articulate how schools can foster these traits. But what if some conflicts
arise not from disagreement about values but from irreducibly political
conflict? Attending to the conditions of deliberative democratic politics in
divided societies forces this question to our attention, as is made plain by
the chapters that focus on the politics of settler societies. The chapters in
Parts 1 and 2 articulate a range of obstacles to deliberative communication
and agreement, with different degrees of optimism about the epistemic and
political possibilities for deliberative engagement across deep social and
cultural differences.
The issue of deliberative engagement across deep differences leads straight
to a second cross-cutting theme, to do with the characterization of the virtues
necessary in a deliberative polity. If value pluralism is in fact at the heart of
Copyright 2010. UBC Press. All rights reserved.

political disagreement, as some of the chapters in this volume assume, then


the virtues of reflexivity, reciprocity, and distanciation with respect to
ones own values really are required. But these virtues may be less essential
when conflict is viewed as a clash of political interests, as other chapters
emphasize; indeed, where disputes are grounded in political conflict rather
than value pluralism, the call to abstract from ones conception of the good,
or from individual and community interests, can seem like a pernicious
move in a political game. What better way for a hegemonic group to entrench
its power than by requiring that subaltern groups not pursue their interests
or their conceptions of the good within deliberative settings? Other chapters,
notably those of Fishkin and Richardson, suggest that institutional context
is as important as subject matter in determining the traits of character that
deliberators manifest or ought to manifest. Deliberation, after all, occurs not

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Introduction 9

in the abstract but in concrete institutional contexts. These contexts orient


deliberation by providing it with specific tasks; deliberation can aim for a
binding decision or, much more modestly, it can aim to provide decision
makers with (non-binding) input. These different tasks of deliberation affect
the moral psychology of participants, the delineation of appropriate virtues,
and the mechanisms needed to inculcate these virtues.
A third and final cross-cutting theme has to do with the appropriate loca-
tion of deliberation. Taken at the most abstract level, deliberation brings
those affected together to decide about the common good. But where is this
most appropriately done? In the informal public sphere? By proxy, through
the activity of representatives within legislative institutions? Within specially
designed deliberative settings such as citizen juries and deliberative polls?
And how should deliberative democrats address boundaries that often are
taken to constitute deliberative spaces, be they constitutional principles that
define the democratic institutions of a nation or the borders that define who
is permitted to take part in the decision-making procedures of a demos? The
chapters in this volume broach these questions of location through a number
of different cases and concerns, ranging from the role of publicity in con-
stitutional negotiations, to the principles and institutions that should govern
relationships between democratic jurisdictions, to the grounds for delibera-
tive encounter between indigenous peoples and settler states.
We believe that, in addressing crucial issues within what we have termed
the real world of deliberative democracy, the chapters in this volume also
tackle more foundational issues where advances are needed for the field to
achieve theoretical maturity.

Part 1: Educating Deliberative Citizens


The first set of chapters deals with two deeply interrelated questions. First,
which traits of character must citizens have for democratic politics to be
Copyright 2010. UBC Press. All rights reserved.

characterized by deliberation rather than confrontation? Deliberative dem-


ocracy clearly places moral demands on citizens. They cannot simply press
their self-interest but must be willing to exchange reasons with their fellow
citizens and to accept that the force of the better argument the balance
of reasons might lead to outcomes less favourable to their interests than
could have been obtained through a more confrontational politics. Accord-
ing to some theorists, deliberation gives rise to a reconceptualization of
citizens interests, such that this gap between argument and interest is less
likely to occur. But we must remain alive to the possibility that deliberative
democratic politics will sometimes mean citizens doing less well by the
standard of their narrow self-interest or their conception of the good than
might otherwise have been the case, and we must describe the kind of moral
psychology that would keep this from being politically destabilizing.

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10 Daniel Weinstock and David Kahane

So deliberative democracy requires that citizens respectfully attend to the


reasons adduced by their fellow citizens for positions to which they are
sometimes deeply opposed. It requires that they be able to accept outcomes
that are often at odds with their convictions. And it probably therefore also
asks of citizens that they adopt a more detached, questioning perspective
toward these convictions than they adopt in their everyday lives. Certain
commitments must be up for grabs, at least to some degree, if deliberation
is to give rise to stable consensus and compromise.
Describing this sort of deliberative democratic moral psychology is no
simple task. It leads to a second crucial question: What educational principles
and practices can produce the requisite deliberative virtues and traits of
character?
The chapters by Micheline Milot, Harry Brighouse, and Paul Weithman
demonstrate that there are no easy answers to these questions of moral
psychology and educational principles. In Conceptions of the Good: Chal-
lenging the Premises of Deliberative Democracy, Milot puts forward what
might be called the standard deliberative democratic case for a public school
agenda aimed at inculcating in children character traits that enable them
to take part in democratic debate with citizens who do not share their reli-
gious or moral conceptions of the good life. She argues that traits such as
reciprocity and reflexivity are indeed necessary to democratic debate in a
pluralist society, and she holds that families, and private schools modelled
after the particular conceptions held by families, cannot be entrusted with
this pedagogical task. It is not an excessive constraint, she argues, to attempt
to inculcate these traits, defined in a moderate way, even in children whose
families do not hold liberal values.
Brighouse and Weithman respectively contest both prongs of the standard
deliberative democratic case put forward by Milot. In Religious Belief, Re-
ligious Schooling, and the Demands of Reciprocity, Brighouse agrees that
Copyright 2010. UBC Press. All rights reserved.

reflexivity and open-mindedness are important deliberative democratic tools;


however, he argues that educational theorists should be consequentialist
about these values and endorse any educational arrangement, including
religious schools, that tends to promote them. It is wrong, in his view, to
assume a priori that religious schools cannot effectively promote deliberative
traits. Weithmans challenge to the basic deliberative democratic case is more
fundamental because it attacks its foundational premise. In Religious Edu-
cation and Democratic Character, he argues that a widely accepted assump-
tion about deliberative character that it involves a disposition to comply
with requirements of publicity or accessibility of reasons when deliberating
with citizens about political outcomes is unsustainable and that a principled
deliberative democratic resistance to religious school curricula is therefore
mistaken.

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Introduction 11

Part 2: Deliberative Democracy, Constitutions, and the Boundaries


of Deliberation
As already noted, there seems to be a tension between the claims of delibera-
tive democracy and those of constitutionalism: The latter purports to take
certain issues and principles off the political agenda once and for all, while
the former privileges citizens capacity to examine and reconsider even their
most fundamental political decisions. There are at least two strategies that
tackle this apparent tension, and both are explored in the chapters in this
section.
The first strategy presents the constitution itself as securing the conditions
essential to public deliberation. In particular, many of the rights and liberties
guaranteed in liberal constitutions can be seen as necessary conditions for
deliberation. Stephen Holmes and Cass Sunstein, among others, have de-
fended the democratic character of liberal constitutions in this way, viewing
them as essential devices through which the people tie their own hands so
as to deliberate effectively and act consistently (Holmes 1995, 167; see
also Sunstein 2001, 6-7). From this perspective, the relevant question is about
the minimum standards that enable a constitution to fulfill this role. There
is wide consensus that a constitution should include basic rights and liber-
ties (freedom of association, freedom of expression, etc.) that have an obvious
link to the formation of the collective political will, and there is debate about
whether this requirement would also cover rights and liberties less directly
connected to political life. Joshua Cohen, for instance, has argued that
freedom of religion would also necessarily be protected since disregarding
the obligations that religious belief imposes on believers, on grounds that
they could not recognize as compelling, would amount to a denial of their
equal standing in political deliberation (1996, 103).
While addressing important issues, such discussions ignore a crucial fact.
When viewed as an enabling device for democratic deliberation, constitu-
Copyright 2010. UBC Press. All rights reserved.

tionalism faces seemingly insuperable problems in the context of multi-


national and/or transnational states. A central premise of modern
constitutionalism is that the demos is unified, but this premise is incompat-
ible with the internal diversity of multinational states and of expanding
forms of transnational governance. Multinational states appear to contain
a plurality of democratic polities: How, then, might their constitutions help
create a deliberative community in which citizens are connected across
national boundaries rather than merely within the boundaries of single
national groups? In Is Democracy a Means to Global Justice? James Bohman
argues that constitutions for both multinational states and transnational
polities must ensure the democratic minimum for all citizens, regardless of
the demos to which they belong. In other words, citizens at all levels of a
federal or transnational structure must be able to initiate deliberation and

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12 Daniel Weinstock and David Kahane

the decision-making processes that follow. Such a democratic minimum,


Bohman argues, could remain unfulfilled not only because individuals and
groups are dominated by non-democratic means but also because they are
dominated democratically. To the extent that the demos of one unit lacks
the normative power to initiate deliberation that involves other demoi, it is
subordinated to them.
The second strategy to lessen the tension between democracy and consti-
tutionalism is to make the constitution itself the object of public deliberation
and thereby strengthen its claim to democratic legitimacy. James Tully (1994,
69) has identified an aporia in modern constitutionalism: A modern con-
stitution comes into being at some founding moment and stands behind
and provides the rules for democratic politics ... [It] thus appears as the
precondition of democracy, rather than a part of democracy. This may not
have been a problem in the eighteenth century, but clearly and here recent
European and Canadian histories are instructive it poses extremely difficult
issues for contemporary democratic polities. Indeed, even though a consti-
tutional text includes all the right features to secure the conditions of de-
liberative democracy, it might still enjoy only weak legitimacy if the process
through which it was written is deemed insufficiently open.
But this raises a new set of questions. What form should the constitution-
making process take to satisfy the requirements of public deliberation? In
particular, do the norms that on most accounts structure deliberative forums
suit constitutional negotiation? Here deliberative theorists must face difficult
issues about the applicability of the deliberative model in mass democracies,
where potential tensions between its deliberative and democratic components
come into the open. How should the requirements of publicity be interpreted
in this context? In Open versus Closed Constitutional Negotiation, Simone
Chambers, like others (Elster 1995; Gutmann and Thompson 1996), recog-
nizes that publicity can sometimes have perverse effects and that it is not
Copyright 2010. UBC Press. All rights reserved.

an unqualified boon to constitutional negotiation. In some contexts, she


stresses, publicity encourages public reason in the normative sense, but in
others it can lead to grandstanding and playing to the cameras. She intro-
duces the concept of plebiscitary reason to characterize the deleterious
effects of publicity, particularly in contexts where a mass public stands in
an asymmetrical relation to speakers who use manipulation, pandering, and
image maintenance to achieve their ends.
Deliberative democrats have a tendency to respond to the dangers of
plebiscitary reason through two methods of avoidance: one for elites and
one for ordinary citizens. In the first case, authors recognize the need for
framers to retreat behind closed doors to negotiate particularly delicate issues.
In the second, small deliberative safe havens such as deliberative opinion
polls and citizen assemblies are welcomed as fostering the use of public
reason. Democratic and deliberative moments are linked in a sequential

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Introduction 13

model in which open democratic ratification involving large groups follows


instances of small closed debate. The originality of Chambers contribution
to this discussion is her interest in a non-sequential model of constitutional
discussion, which explores the possibility of joining the deliberative and
democratic moments in one conversation. This entails the need, as Chambers
points out, to confront plebiscitary reason head-on, first by conceptually
distinguishing between the different ways in which plebiscitary reason and
private reason threaten deliberation, and second by sketching an account
of deliberative rhetoric against which we can criticize speeches and orators
as well as the media.
One might wonder whether the two strategies outlined here are not mu-
tually exclusive. The first affirms that the idea of public deliberation requires
the protection of specific rights and liberties in the constitution, essentially
tying the hands of the people(s), whereas the second wants to submit the
process of formulation of these rights and liberties to public deliberation.
But as John Dryzek has argued, this problem is more apparent than real if
one considers that framers could deliberate about the meaning of specific
rights and their relation to each other, or about different institutional means
to protect them, while agreeing that doing without such rights is not an
option. To quote Dryzek, if it is the case that the very idea of deliberation
requires such rights, then any participant in constitution-making could only
argue against them by engaging in a performative contradiction (2000, 16).

Part 3: Deliberative Democracy and Indigenous Peoples


Bringing deliberative theory to bear on questions of justice toward indigen-
ous peoples in settler societies such as Canada, the United States, Australia,
and New Zealand is rewarding for several reasons. Deliberative democratic
theory is first and foremost an account of political legitimacy, and there are
few more profound challenges to the legitimacy of settler societies political
Copyright 2010. UBC Press. All rights reserved.

and legal arrangements than those raised from the perspective of indigenous
peoples. Thus, for those seeking to understand what would constitute a just
and legitimate political-legal arrangement between indigenous and non-
indigenous populations within such societies, deliberative theory appears
promising. Furthermore, once we undertake such an inquiry, it quickly
becomes evident that some of the most difficult unresolved questions in
deliberative theory are brought into sharp relief by cases involving relation-
ships between indigenous and non-indigenous peoples.
Theories of deliberative democracy hold out the promise that democratic
deliberation can narrow the range of political disagreements not only in
contexts of moral and religious pluralism (or the pluralism of what Rawls
[1996] refers to as comprehensive conceptions of the good) but also in
contexts of cultural pluralism. Fundamentally at issue is the question of
which reasons should count as public reasons in deliberative exchanges.

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14 Daniel Weinstock and David Kahane

Although Habermasian versions of deliberative democracy (in contrast with


some Rawlsian variants) eschew any a priori distinction between public and
non-public reasons, deliberative theory has not yet developed to the point
at which it can guide us when an authoritative reason from within one
ethical or cultural perspective is not recognized as a reason let alone an
authoritative reason from the ethical standpoints of other parties to de-
liberation (Benhabib 2002, 133-46; Valadez 2001; Williams 2000).
Conflicts between indigenous communities and non-indigenous settler
societies present us with profound cases of such disagreement, where differ-
ences penetrate even to such fundamental questions of ontology as humans
relationship to the Earth and to other species. At its best, deliberative exchange
may narrow the range of such disagreements, to the extent that different
parties seek to enter into one anothers worldviews for the sake of mutual
understanding. Furthermore, deliberation may sometimes make it possible
to discover analogies or parallels between cultures, thus making shared moral
reasoning possible. Yet these two processes what Jorge M. Valadez calls
familiarization and translation may not be sufficient to bridge the
cultural divide altogether. In other words, Valadez argues, there are cases in
which cultural worldviews are simply incommensurable. In The Implications
of Incommensurability for Deliberative Democracy, he argues that the de-
liberative democratic requirement that public reasoning should proceed on
the basis of shared moral reasons fails to take seriously the incommensur-
ability that sometimes exists between groups, in particular between colonized
indigenous groups and members of the non-indigenous majority. Valadez
examines political exchanges between the Zapatistas of southern Mexico and
the Mexican government, showing how the incommensurability of the
political discourses of these two groups makes evident the impossibility of
establishing agreement on the basis of common reasons. In such circum-
stances, he argues, deliberative theory should be willing to acknowledge that
Copyright 2010. UBC Press. All rights reserved.

uncoerced agreement is morally desirable even if it is grounded in reasons


that are substantively different for the groups involved.
The case of the Zapatistas also makes clear that conflicts between indigen-
ous groups and the modern (colonial) state can sometimes be framed either
as a clash of cultures or as a clash of core material interests. The circumstances
of indigenous peoples often make it difficult to distinguish between these
two axes of conflict, especially where cultural differences overlap with dif-
ferent interpretations of the history of colonial relationships of the process
by which the settler society gained dominion over indigenous peoples
traditional lands and of the fundamental legitimacy of state authority with
respect to indigenous peoples. Whether deliberative democracy can effect-
ively establish just and legitimate relationships between indigenous and
non-indigenous communities depends in part, then, on its capacity to narrow

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Introduction 15

the range of disagreement over questions of historical injustice and their


implications for future indigenous-settler relationships.
In Deliberative Democracy and the Politics of Reconciliation, Duncan
Ivison explores the potential of deliberative processes to address historical
injustice by focusing on the experience over ten years of the Australian
Council for Aboriginal Reconciliation. The politics of reconciliation were
complicated by an array of factors: new court decisions concerning Native
title to lands, ongoing social inequality and deprivation among Aboriginal
Australians, and the background of the stolen generations of Aboriginal
children taken from their families as part of a state policy of coercive as-
similation. As in other settler societies, indigenous communities were am-
bivalent about the idea of reconciliation as a goal of political discourse if
reconciliation meant putting aside demands for restitution or rectification
(see also Alfred 2005). Ivison characterizes disagreement over this question
as political rather than (or more than) moral in nature, and he argues that
deliberative theory should not regard political disagreement as reducible to
moral disagreement. Not surprisingly, perhaps, the Australian experience
reinforces the judgment that the deliberative exchange of reasons is seldom,
if ever, free of relations of power (Mansbridge 1996; Sanders 1997; Valadez
2001; Young 1990, 1996). Ivison argues that correcting for the power imbal-
ances that are often incorporated (consciously or unconsciously) into the
institutional structures of deliberative engagement requires an openness to
recursively revising institutional arrangements for political deliberation,
including electoral systems. Yet no amount of creative institutional design,
he suggests, can generate just results in the absence of a prior commitment
to allow questions concerning the core legitimacy of the state in its relation
to indigenous peoples onto the deliberative agenda.
As the foregoing suggests, some critics of deliberative democracy continue
to suspect that it may still harbour surreptitious biases against certain cultural
Copyright 2010. UBC Press. All rights reserved.

groups especially indigenous groups in its presuppositions about the


nature of public reason, the institutions and norms of deliberative proced-
ures, and the qualities that individuals must possess to be capable of trans-
formative dialogue. These critics worry that abiding by the strictures of
deliberative democracy will tend to favour the modes of argumentation and
the interests of dominant groups. In Resisting Culture: Seyla Benhabibs
Deliberative Approach to the Politics of Recognition in Colonial Contexts,
Glen Coulthard addresses deliberative theorists claim that citizens must be
able to step back from their identities and understand them as social con-
structions. From the constructivist view of culture, cultural identities are
not insular or coherent wholes but crisscrossing narratives, with individuals
bringing different elements to bear on different aspects and in different
moments of their social relationships. As a sociological critique of cultural

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16 Daniel Weinstock and David Kahane

essentialism, constructivism is sensible enough. The trouble, Coulthard


suggests, arises when cultural hybridity becomes a normative standard
against which to judge the political self-characterization of marginal groups,
particularly indigenous groups. Focusing on the recent work of Benhabib,
he argues that the social constructivist critique of the politics of recognition
not only overemphasizes the emancipatory potential of anti-essentialist
political projects but also fails to confront the oppressive relations of power
that often proliferate exclusionary and authoritarian identity formations to
begin with. When social constructivist positions are used to assess the
legitimacy of indigenous peoples claims for cultural recognition and self-
determination against the colonial state, these positions risk inadvertently
sanctioning the very forms of domination and inequality that many con-
structivist theories attempt to mitigate.

Part 4: Citizen Dialogue and Decision Making in a Deliberative


Democracy
In considering the real world of deliberative democracy, the above sections
assess contemporary questions of citizen education, constitutionalism, and
justice for Aboriginal people through the normative lens of deliberative
democratic theory. Deliberative democracy is more than a normative philo-
sophical perspective, however; it also describes a movement that is actively
redesigning political processes to incorporate deliberative democratic prin-
ciples. Examples of overtly deliberative democratic processes abound, most
often as forms of citizen participation or consultation attached to more
conventionally liberal democratic forms of decision making: examples in-
clude the 21st Century Town Halls organized by AmericaSpeaks; consensus
conferences in various parts of Europe, which involve lay citizens in political
deliberation; and Brazilian institutions of participatory budgeting and col-
laborative health policy development (Gastil and Levine 2005). These de-
Copyright 2010. UBC Press. All rights reserved.

liberative democratic initiatives provide useful testing grounds for


deliberative democratic theory, bringing into relief both strengths and weak-
nesses of the philosophical program.
The various forms of deliberative democratic practice canvassed above are
most often consultative: rather than being empowered to make binding
political decisions (as with many Brazilian deliberative forums), such exercises
usually represent the views of citizens in ways designed to inform debate
within conventionally liberal democratic institutions, such as legislatures.
In Public Opinion and Popular Will, Henry S. Richardson asks whether
unempowered dialogue among citizens should be taken to represent the will
of the people, given that it invites people to articulate their views without
having to come to a binding agreement. Richardson explores these questions
through a critique of James Fishkins Deliberative Opinion Poll model, an
unusually influential and rigorously documented practice of deliberative

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Introduction 17

democratic consultation. Richardson argues that because deliberative opinion


polls lack the discipline of the possible, they canvass the mere wishes of
citizens rather than their genuinely deliberative desires and so introduce
hypocrisy and corruption into the democratic process while sidestepping
crucial issues of power. Richardson argues that only when deliberative
democratic processes are mechanisms of joint agency, empowered to make
decisions, can they get around predictable defects of practical reasoning to
yield genuinely deliberative outcomes.
In Consulting the Public Thoughtfully: Prospects for Deliberative Dem-
ocracy, Fishkin responds to Richardsons critique, arguing that careful public
dialogue such as that modelled by deliberative opinion polls gives citizens
the incentive to overcome their rational ignorance and develop common
understandings of problems. Even without the discipline of collective, em-
powered decision making, deliberative opinion polls elicit a picture of the
popular will that is more adequate than that available through other existing
methods and that indeed ought to be normative for those empowered to
represent the popular will in representative institutions. Fishkin goes on to
situate deliberative opinion polls on a broader terrain of democratic dialogue
and consultation, sorting out the different ways in which consultative pro-
cesses select participants and the extent to which they deliberatively refine
opinions; this typology leads him to suggest that deliberative polls and a
grander counterpart, the national deliberation day that he has proposed
with Bruce Ackerman (Ackerman and Fishkin 2003, 2004) are best able to
balance the key democratic values of political equality and deliberation.
In the final chapter of this section and the volume, The Micropolitics of
Deliberation: Beyond Argumentation to Recognition and Justice, John
Forester and David Kahane argue that attention to the nuances and com-
plexities of practices of democratic deliberation reshapes a number of debates
within deliberative democratic theory. These nuances and complexities are
Copyright 2010. UBC Press. All rights reserved.

introduced through two practice stories, wherein a student of planning


and an experienced mediator and city planner each describe challenges of
designing and facilitating deliberative processes. These narratives reveal the
tangled relationship between moments of dialogue, deliberation, and nego-
tiation in democratic processes and the interconnections between propos-
itional and performative elements of argumentation. The chapter shows
how these lessons from practices of deliberation raise central questions about
recognition and the demands of deliberative reciprocity, about the delibera-
tive virtues and their cultivation, and about the significance of the roles of
mediator and facilitator for deliberative democratic theory.

The four sections of this volume trace connections between deliberative


democratic theory and a series of concrete political challenges around edu-
cating democratic citizens, relating democratic norms to constitutional

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18 Daniel Weinstock and David Kahane

structures and procedures, grappling with the epistemic gulfs and differences
of power typical of indigenous-settler relations, and designing democratic
consultations adequate to the exigencies of decision making and the demands
of justice. These engagements between theory and practice show the rich-
ness and promise of the deliberative democratic paradigm but also how
difficult it is to articulate and sustain an ambitious normative paradigm in
light of the challenges made visible by an engagement with conflicts and
dilemmas on the ground, and to connect the normative languages of political
theory with the exigencies of practice. We hope that the dialogues and de-
liberations provoked by this volume will contribute, in their modest way,
to realizing deliberative democracy within and across the complex, multi-
cultural societies in which we live.
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Part 1
Educating Deliberative Citizens
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1
Conceptions of the Good:
Challenging the Premises of
Deliberative Democracy
Micheline Milot

The value pluralism of modern liberal democracies is central to both sociol-


ogy and political philosophy. Max Weber, whose work inspires both disci-
plines, used a compelling metaphor drawn from Greek antiquity to describe
the fate of modern advanced societies when he spoke of the polytheism of
values (1959). In the modern world, the polytheism of values describes the
relentless secularized struggle between cultural, economic, political, or reli-
gious value systems that all seek to establish themselves as hegemonic. No
metaphysical norm can rank-order these values because much of their force
stems from the convictions of their adherents. In fact, these values confront
each other unrelentingly because the beliefs that serve as their foundation
are often irreconcilable. As such, according to Weber, society involves con-
stant value struggle, which he likens to the conflict that perpetually divided
the gods of the Greek pantheon. These values, as absolute ideas, strongly
influence the choices of social actors and are manifest in the public sphere
when they conflict with the values of individuals or of groups in different
political communities. How can we ensure a modicum of social order and
Copyright 2010. UBC Press. All rights reserved.

political stability in the context of such value conflict?


In this chapter, I explore how public schools, in conjunction with the
principles of deliberative democracy, can mediate the potential conflict
between differing moral and religious beliefs. Although my perspective is
primarily sociological, I attempt to consider these principles and their limits
alongside key themes drawn from sociology, such as the purpose of modern
schools, value pluralism, and the interests of citizens in democratic
participation.

The Problem of Deliberation about Conceptions of the Good


Should schools apply the principles of deliberative democracy when moral
and religious viewpoints are presented in the classroom? Can they do so?
There is no simple answer to these questions, for three reasons. The first
reason is that the two principal theses of deliberative democracy, to do with

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22 Micheline Milot

the citizens role in deliberation and with the democratic virtues of delibera-
tion, are hotly debated in political philosophy. Bohman (1996), Gutmann
and Thompson (1996), and notably Rawls (1996), among others, have each
defined, in complex yet different ways, the fundamental principles of de-
liberative democracy and deliberative citizenship, thus setting up a debate
over the proper shape and content of the public sphere, alongside the sorts
of deep moral debates outlined above. Overlapping consensus (Rawls 1996)
and the requirements of reciprocity (Gutmann and Thompson 1996) are
just two contested elements of this set of principles.1
The second reason is sociological. Citizens and their children may af-
firm moral or religious beliefs hostile to liberal democratic values. Some
actively engage in contesting values they consider responsible for the moral
degeneration of contemporary society (e.g., struggling against abortion or
gay rights), whereas others seek to shelter their cultural identity and com-
munity lifestyle from the influences of modernity and liberal values. Other
citizens see this conservatism as violating norms of public reason, drawing
as it does on an orientation toward absolute and particular norms or trad-
itions, without the willingness to deliberate with those who do not share
these worldviews. According to the tenets of this position (similar to a mil-
itant version of liberalism), believers should transform their values to
adopt an outlook compatible with democratic regimes. However, the two
positions are problematic from the perspective of the tolerance and openness
to pluralism that should characterize liberal democracy.
The third reason has to do with the educational requirements of schools.
There is no philosophical, pedagogical, or political consensus on the ob-
jectives that public schools should pursue when it comes to the moral and
religious beliefs of children. The two most common educational choices in
Western schools are confessional teaching on the one hand, which promotes
a particular faith, and complete abstention on the other.2 Both possibilities,
Copyright 2010. UBC Press. All rights reserved.

if enacted consistently, fail to take the principles of citizenship and delibera-


tion (on whatever interpretation) into consideration. Confessional teaching,
by its very nature, gives primacy to the continuation of a particular groups
values or cultural identity. On the other hand, pedagogical silence about
moral and religious beliefs sends a mixed message to children: either these
beliefs are not sufficiently important in society for the school to be concerned
with them, or they are subjects we can grapple with only in the presence
of those who share our worldview. Neither of these pedagogies confronts
the fundamental problem of pluralism, and each accentuates social
division.
How can these difficulties be overcome given the thick value pluralism of
modern society? I would like to suggest three goals that public schools could
pursue. These goals are compatible with the cognitive tasks that characterize

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Conceptions of the Good: Challenging the Premises of Deliberative Democracy 23

schools. Whats more, they are inspired by the spirit of deliberative democratic
principles. These goals are rooted in an inclusive conception of public reason,
defined by principles of tolerance, reciprocity, and civility.

Why Treat the Question of Value Pluralism in Public Schools?


Moral and religious beliefs are too important in determining social action
to be completely eliminated from the educational mission of schools. It is
unsustainable to locate fundamental beliefs in the private sphere and delib-
eration around shared values in the public arena. The private/public distinc-
tion as it pertains to religious convictions has long been discredited, in
particular by work in the sociology of religion: individuals act, socially
identify, and adopt political positions on the basis of their values and beliefs,
be they philosophical or religious. Moreover, as noted earlier, Weber persua-
sively argues that moral differences manifest themselves and take shape
precisely when they enter into conflict with the moral positions of other
citizens in the public sphere. This fact alone implies that social cohesion
has little chance if we simply allow the balance of forces to govern social
relations or if we presume that individuals will spontaneously know how to
participate peacefully in public life with those who do not share their beliefs.
The state, via the public schools, has an interest in preparing youths to live
together in a political space with and despite their moral differences.
Although parents may be responsible for the education of their children,
and though it is clearly desirable that they pass along dispositions that en-
able a common life, one cannot count on parental goodwill to achieve this
pedagogical objective. We can even reasonably doubt whether parents ought
to be the principal vehicles of this end. Indeed, it is normal that they (like
the religious groups to which they belong) will exercise a sort of centripetal
pressure on the young in order to reproduce their own values and beliefs.
Modern schools do not share the task of reproducing the specific identity
Copyright 2010. UBC Press. All rights reserved.

traits of those who use them.3 Since the second half of the twentieth century
in particular, modernity and the ideology of progress have increasingly
taken hold and strongly influenced Western schools. In fact, the origin of
the modern school, its very existence, and its astonishing development are
directly tied to the prevalence of the notion of an education for all, an ideol-
ogy that seeks to prepare each citizen for political participation and collective
action. For this reason, modern public schools break with tradition, custom,
particular modes of thought, and conceptions of truth. Unburdened by the
task of faithfully reproducing the customs of a childs community, schools
are more concerned with instilling a capacity to adapt to the world (prin-
cipally its technical, economic, and scientific aspects). Schools have opted
for a universal conception of knowledge, which differs from folk knowledge
that is handed down from father to son and valued locally. Even more

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24 Micheline Milot

significantly for our purposes, schools have instituted a radically different


relation to truth and thus to authority, tying knowledge to a conception of
rationality that rests validity claims on experimentation and rigorous critique
and so inevitably contests the very idea of tradition. We find instances of
this contest in recurrent controversies in several American states over the
teaching of the biological evolution of species, which is deemed incompat-
ible with certain religious doctrines of Creation.
In the face of this new aim of public schools, identities inherited by birth
and strongly moulded in early family socialization undergo an alteration
that can be more or less dramatic depending on the similarity between this
inherited identity and the liberal values promoted by the school. Familial
and religious values become one among many ways to construct an identity,
which becomes, from that point on, pluralist and polymorphic rather than
homogeneous and entrusted with a unique heritage. There are myriad ex-
amples of this fragmentation of tradition provoked by the school. This is
why liberal values can be perceived as a threat to the identity and culture
of different communities, for example in regard to structures of authority
and to gender roles.
Let us return to the fundamental question: How can education apply the
principles of deliberative democracy without imposing an unjust burden on
children (and their parents) whose moral and religious beliefs oppose the
values promoted by liberal democracy?4 I will treat this question with one
limiting presupposition in mind: it seems to me that schools cannot be
expected to transform the beliefs of individuals hostile to liberal thinking
in order to make them conform to the principles of liberal democracy. De-
spite the function of the school described above, the liberal state cannot
morally require such a transformation if one of its principal characteristics
is to be open to differing worldviews, even those contrary to its own prin-
ciples. How far can schools go in applying liberal democratic principles while
Copyright 2010. UBC Press. All rights reserved.

taking the educational role of value pluralism into account?

The Principles of Citizenship and Deliberation


The civil participation of individuals and the deliberative virtues admit of
degrees, and it is not plausible to expect that all citizens will deliberate and
participate in society with the same degree of investment and competence,
much less that they will all adhere to liberal democratic principles. I will
not directly discuss the different theses at loggerheads with the two main
principles of deliberative democracy; however, as my sociological concerns
are expressed in terms of citizenship and deliberation, I will, in this section,
briefly outline two key propositions related to these concepts. In the follow-
ing section, I will present three objectives that situate citizenship and delib-
eration as both plausible and desirable reference points when addressing the
reality of value pluralism in public schools.

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Conceptions of the Good: Challenging the Premises of Deliberative Democracy 25

The Requirements of Citizenship


The liberal democratic state must both tolerate those who do not subscribe
to the values that underlie this political regime (insofar as they do not
threaten its survival) and ensure that the states existence is generally sup-
ported by citizens.5

The active role of the citizen can be valued for different reasons. It can,
for example, facilitate social cohesion (solidarity around collective projects
beyond our particular interests) and revitalize civil institutions to general-
ize political participation to a larger scale.
However we interpret civil participation as a normative ideal, it is not an
acceptable or even a desirable lifestyle for all citizens. Certain citizens
maintain that citizen action is an illusion and that their participation has
absolutely no effect on the course of political decisions; others do not
recognize worthy political projects other than the religious ideology to
which they subscribe.
Democracy, with its natural affinity to pluralism, cannot morally oblige
all citizens to have a strong, homogeneous, and common identification
with the collective political project.
In the constitutional state, even those religious groups most resistant to
liberal values have an interest in participating, in their own manner, in
democratic institutions. The most obvious example is recourse to law to
protect their way of life; this recourse has stimulated progress in jurispru-
dence in matters of freedom of religion and expression.
Democracy cannot survive without a sufficient number of citizens meeting
its functional demands (participation, responsibility, respect for law, etc.),
but withdrawal from active citizenship by some constituencies does not
threaten liberal democracy.6
Copyright 2010. UBC Press. All rights reserved.

Democratic Deliberation
Deliberation, despite its intrinsic limits (it is utopian, and so sociologically
invalid, to expect deliberation to allow citizens to overcome their moral
differences), still seems to be one of the best routes to peaceful social inter-
action in a context of value pluralism. Otherwise, we must rely on force (and
the not always moderate tyranny of the majority).

Deliberative democracy, whether it is construed as a means to procedurally


obtain a minimum social consensus or interpreted in terms of direct par-
ticipation by citizens in the decisions that concern society, is not valued
by all citizens (particularly those whose absolute beliefs are, by nature,
non-negotiable).
Collective deliberation cannot make moral differences disappear without
recourse to a moral theory integrating a particular conception of the

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26 Micheline Milot

good, thus erasing the very essence of pluralism. Moreover, certain reli-
gious groups cannot subscribe to this mode of social interaction because
the criticism and decentring that are part and parcel of deliberation
risk undermining the cultural and identity foundations of the group.
Value conflict thus remains an ineliminable dimension of democratic
societies.
The deliberative process can indirectly accentuate feelings of division
between individuals who are conscious of their moral differences.
Deliberation, in the context of moral pluralism, is a question of individual
aptitude. That is, it cannot be normatively demanded.
Deliberation, despite its limits, remains the least coercive and the most
apt way of supporting enlightened interaction and openness to pluralism
between individuals with different beliefs.
In a constitutional state, even those religious groups most resistant to
liberal values can accept a recourse to deliberation, even if it is only for
the purposes of instituting and sustaining a system of rights that allows
them to live according to the principles and values to which they
adhere.

Despite these various qualifications, I believe that the principles of delibera-


tive democracy are helpful in treating the problem of value pluralism in
schools; these principles remain operative even though it is sociologically
unlikely that civil participation and deliberation will be affirmed by all and
morally unacceptable that liberal states should oblige all citizens to live ac-
cording to these principles. Lest I be misunderstood, the aim should be not
to marginalize citizens who do not subscribe to the principles of the liberal
democratic state but to examine the possibility of an even partial inclusion
in public reason of conceptions hostile to liberalism.
Moreover, I maintain that certain normative constraints inherent in the
Copyright 2010. UBC Press. All rights reserved.

rule of law are extra-deliberative (at least after the moment of their enact-
ment). For example, it would be absurd, not to mention improbable, that
citizens who claim their right to the democratic vote would decide to abolish
the democratic state. Even individuals or religious groups resistant to liberal
values need the vote in order to enjoy a differentiated moral status within
a pluralistic society (Carens 1996).

Some Desirable Educational Goals


Schools are not agoras. They are institutions geared to the initiation of in-
dividuals into community life. Thus, they cannot be entirely divorced from
the dominant norms of the surrounding society. The socializing role of
schools should not be defined in terms of normative principles; I do not
think that the school should form youth according to a particular normative

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Conceptions of the Good: Challenging the Premises of Deliberative Democracy 27

ideal. Rather, schools should seek to provide youth with the disposition and
capacity to allow them, once adults, to make choices about civil participa-
tion and the best ways to realize their lives in society. I thus propose three
intertwined objectives drawn from the model of liberal democracy (as con-
strued above), and I will examine the degree to which they allow youth who
hold diverse values and beliefs to nonetheless live together.

Tolerance
Since Locke, the notion of toleration has engendered abundant debate, and
one can easily discuss its aporias. Without entering into these debates, we
can outline weak and strong senses of toleration. In the weak sense, it
involves abstractly supporting the idea that others can live freely without
sharing our values and without belonging to our particular cultural or reli-
gious group. The weak sense of tolerance permits social pacification (in a
static sense) but does not necessarily inspire respect for others or the capacity
to debate opposing viewpoints in the political arena. We can brush elbows
with others without truly engaging with them because the state imposes
this tolerance through judicial constraints that hinder individuals from
limiting the liberty of others who have different values or lifestyles.
In its strong sense, tolerance goes beyond a simple acknowledgment of
the idea that others enjoy by law the same freedom that one is accorded
through political governance. I understand strong toleration epistemically,
primarily as a psychological and cognitive capacity rather than a social one.
Because we consider our own beliefs valid for ourselves, we can recognize
that people who adhere to different beliefs consider them just as valid, and
therefore it is not our place to judge their conceptions of the good life. One
acquires this type of mindset gradually, particularly when it comes to reli-
gious beliefs based on absolute principles and not on a social consensus
open to revision and redefinition. Youth are unable to develop the capacity
Copyright 2010. UBC Press. All rights reserved.

to tolerate differences in an epistemic sense unless they are exposed to


viewpoints different from those of their family or religious group.
This goal must be guided by two complementary objectives: first, know-
ledge of diverse life options should be imparted not to nurture a shared
culture but to awaken respect for others. This respect requires that the schools
curriculum not give disproportionate weight and salience to a particular
value system or induce moral discord between the child and her family re-
garding their religious or cultural tradition.
The legitimacy of teaching religion at school is often justified by its neces-
sary contribution to understanding artistic, historical, and political dimen-
sions of Western culture. This goal is important, but it can be met by
integrating religion into programs such as history, literature, and geography;
it does not yet justify an education in value pluralism specifically. Indeed,

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28 Micheline Milot

mere understanding of the fact of religious diversity may not predispose one
to tolerance; history has demonstrated in abundance that humans have
gone to the point of killing each other because of differences in religious
belief. Furthermore, one can worry that a presentation of religion in the
classroom would be limited to a stiff, even folkloric or idealized, description.
In such cases, one risks distancing oneself from the real needs and interests
of children in addition to presenting a caricatured vision of religion. There
is even the risk of aggravating division when bringing the mosaic of different
moral and religious beliefs to light.
This is why the knowledge of different religious and moral conceptions,
although necessary, must in fact serve another objective: the respect of others
as equal in dignity. Respect for others in their differences goes further than
merely the descriptive understanding of doctrines. It is not only about know-
ing that others do not necessarily share our beliefs and values but also about
developing a respectful attitude that permits others to feel that their identi-
ties are recognized and accepted.
Epistemic tolerance, however, does not necessarily require approval of
others beliefs and practices. When one calls for youth to be tolerant of others,
it is not a demand to renounce personal beliefs. The recognition that others
have the right to the same respect depends not on believing that their values
are just and good but on fundamentally accepting that they have the right
to the same respect as oneself, even if their beliefs are foreign, undemocratic,
or do not conform to those of the majority.
A better education on religious and moral preferences would help each
child acquire a positive identity without fearing the judgment of others,
whatever her identification with a particular religious group. Sociological
studies show that the more a group perceives itself as socially marginalized
for its beliefs or their public expression, the more often it deploys offensive
or defensive strategies, to the detriment of civil participation. An individual
Copyright 2010. UBC Press. All rights reserved.

who is misrecognized by society will conclude that it is preferable to preserve


the religious tenets of her identity, even if it means excessively emphasizing
her creed. This attitude applies equally to those who identify with the ma-
jority social group: learning to recognize others can forestall a condescending
majoritarian reaction. The goal of deepening knowledge and respect is
necessarily a responsibility of public schools, because families and religious
associations can ensure a positive identification only from an internal stand-
point (self-identification rather than in relation to others diversity).
Of course, this aim cannot entail a limitless conception of tolerance, since
it is subject to certain principles of law that have a transcendent (but not
metaphysical) and extra-deliberative status: the rights of others (notably to
security of the person) and to public order. Nevertheless, these constraints
also benefit those who are resistant to liberal principles since they protect
minorities from the pressure to conform to the values of the majority.

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Conceptions of the Good: Challenging the Premises of Deliberative Democracy 29

Reciprocity
Reciprocity is a social competence that is more difficult to develop than
mere respect for others, but it is rooted in the same logic. Gutmann and
Thompson (1996) present interesting and complex arguments concerning
the normative constraints of reciprocity; I propose, at least for the purposes
of education, a conception less stringent than theirs. A strict conception
excludes the public participation and deliberation of those whose beliefs are
at odds with the dominant, accepted norms in the public sphere, unless
they deny a portion of their beliefs in favour of ones that could be accepted
by others in the agora. Although in theory it may be desirable that individ-
uals leave aside their partisan interests before entering into the public debate,
schools cannot demand this of pupils.
I would like to propose a more permissive conception of reciprocity:
without exercising undue moral pressure on children who are, for example,
members of a fundamentalist group, schools can aim to develop a disposition
that recognizes or accords to others what one wishes to have recognized or
accorded to oneself and that seeks not to offend others on issues with respect
to which one would not want to be offended (the same principle goes for
the atheist child toward a fundamentalist child). This model is not just pro-
cedural; it leads to a substantive ethic of social relations. Civility, which I
describe in the third point, is its concrete expression.
What does this mean, precisely, for educational policy? Children must be
helped to distinguish between the legitimacy of the conception of good that
fuels their actions and their attitudes toward others who do not share this
worldview. Children should be capable of evaluating what they can expect
from others who do not share their values and beliefs.
History unfortunately offers us a disappointing portrait of the capacity of
individuals be they believers or atheists to act according to such a con-
ception of reciprocity with respect to religion. No legal restriction can require
Copyright 2010. UBC Press. All rights reserved.

thinking of ones relation with others in terms of reciprocity; the law can
prohibit harming another, but it cannot oblige us to recognize the legitimacy
of anothers identity and lifestyle.
The predetermined moral norms of a religious group often involve restric-
tions that hinder the aptitude for reciprocity and the capacity for public
deliberation by members. Radical liberals object to this request because they
believe that religious doctrine or simply religious belief hinders independent
thinking and judgment, which are indispensable parts of responsible citizen-
ship. This objection is still current, particularly in France, where one observes
in public debates an opposition to manifestations of religion in the political
sphere that is traceable to an Enlightenment contrast between the democratic
will to guarantee the freedom of religion and the need to strip away beliefs
judged radically contradictory to reason and autonomy. Nevertheless, even
this objection rests on the ideals of liberal democracy.

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30 Micheline Milot

Doctrines need not be liberal for those who adhere to them to be able to
bring arguments to the table in public debates (e.g., the sacred character of
life) or to promote certain forms of participation in civil society (e.g., vol-
unteering or helping those with less in the name of Christian charity). What
matters is how claims are brought to the public sphere. In this respect,
Weithman (2002) distinguishes the contents of non-democratic preferences
and preferences from whether these are promoted in an undemocratic fashion.
Believers should not feel excluded from contributing to public deliberation.7
The development of this ability through adequate teaching must enable
citizens to participate in public debate and not hold back simply because
their religious beliefs are judged illegitimate by others.
Since reciprocity is an aptitude that cannot be subjected to normative and
legal restrictions, it requires an educational process. Education can aim to
instill in children a distinction between the contents of religious doctrines,
even illiberal and non-democratic ones, and the ways in which they are
expressed in the public sphere. The nature of moral and religious beliefs,
even when conceived of as absolute, does not necessarily hinder democratic
participation and deliberation.8 At the same time, if a belief is absolute, the
way it is expressed in the public sphere ought to comply with requirements
of respect for those who do not share it.
Is this obligation of reciprocity still too limiting for believers who see their
values as non-negotiable? I think the answer is no. These believers cannot
deny the principles that enable them to draw attention to their own argu-
ments in the public sphere (e.g., the respect for each individual regardless
of the moral position that she adopts). So they must behave ethically toward
other citizens according to the same principles. Even if children do not
participate in public debate, the predispositions required for such debate are
acquired by a slow process of education and socialization. Moreover, these
dispositions are called on from the youngest age, for example in the school-
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yard; isnt this one of the first settings, other than family, where the accept-
ance of difference and respect must be put in place and where the smallest
divergence from the dominant majority easily leads to exclusion?

Civility
The disposition of character that makes possible both respect of others and
the capacity to conceive our social relations in terms of reciprocity is mani-
fested in the public sphere in an attitude that I will call civic-mindedness.
This refers to the attitude of the citizen in public life. It is not a normative
ideal but a mode of living together that enables an adequate realization of
respect and reciprocity. They suppose, in the end, two abilities that can seem
problematic for some fundamentalist religious groups: the capacity of re-
flexivity and moderation in the public expression of ones beliefs.

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Conceptions of the Good: Challenging the Premises of Deliberative Democracy 31

In a literal, dictionary sense, reflexivity relates to the capacity to turn


thought back on itself.9 It supposes a capacity for distancing oneself from
ones religious beliefs. How should this sense of civility be defined in regard
to religious beliefs? What criteria can guide us? Religious expression is always
accompanied by certain limits, notably considerations of social peace and
public good, but I am interested here not in external constraint but in an
awareness that the absolute character of affirmations of faith can hinder
respect for others and lead to inequitable treatment of those who do not
share the same beliefs.

A Capacity for Reflexive Distance


The capacity to distance oneself from ones moral and religious beliefs does
not imply that they are denied any more than it implies a relativist attitude,
nor does it demand that a child make a value judgment on the content of
her familys beliefs or her own. Reflexivity should not be confused with a
radical critique of tradition or an implicit will to uproot identity; severing
ones sense of belonging to ones culture is hardly desirable. If reflexivity is
constituted by a certain critical distancing from the values and beliefs to
which one adheres, then its goal is not to uproot these values but to instill
a mindset that accords with the intellectual mission of the public school,
which cannot renounce its educational mission without denying the foun-
dations of its own legitimacy. Mandatory public school, as I previously de-
scribed, does not aim to reproduce particular identities. The learning that
goes on in schools cannot occur according to the model of self-interpretation
generally found in the family or in religious groups.
It is normal for families, churches, temples, or mosques to put children
in contact with the beliefs of the traditions to which they belong. In school,
then, it is not unreasonable to expect that a pupil will develop the capacity
to distance himself from his beliefs simply by becoming conscious that this
Copyright 2010. UBC Press. All rights reserved.

affirmation makes sense for him and those in his religious group, whereas
other children who do not adhere can legitimately believe in something
else. Without the development of this capacity to distance oneself, it is
impossible for youth (as for adults) to understand how different absolute
affirmations can be just as fair and good for others. The capacity to dis-
tance oneself certainly can incite feelings of moral and religious relativity,
but relativity should not be confused with relativism. If relativism has
the tendency to level moral preferences by asserting that they are equivalent,
the sense of relativity (once again identified by Weber) leads the individual
to recognize that beliefs are valid and valuable from a particular viewpoint,
notably those that are dominant in her own community.
When treating faith affirmations in class, relativity can be conveyed by
specifying that statements such as Mohammed is the Prophet, Jesus is

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32 Micheline Milot

reborn, or Yahweh has chosen the Hebrew people are considered true and
legitimate but within the value systems that support them. The absence of
a distinction between true belief and the contents of a tradition as seen
from the outside can provoke intellectual confusion in children between
the existence of different fundamental religious beliefs and the world inter-
pretations that arise from within faith communities. The learning process is
gradual and without a doubt much easier for children than for adults. Once
again, the aim is to entrust schools with a mission different from yet comple-
mentary to that of the family and religious organizations. Moreover, distance
with respect to affirmations of faith is not generally offensive for children
and parents since its nature is not strictly critical but primarily cognitive.

Moderation in the Public Expression of Ones Identity


The second civic attitude is moderation in the social affirmation of ones
identity and beliefs. The idea of moderation in affirming ones identity was
developed by Spinner (1994) and rearticulated by Pag (1996). It is correla-
tive with the logic of integration in a pluralist context and with recognition
of the fundamental equality of all citizens. Moderation means not that one
must repress or conceal ones religious identity but that one can model it in
a way that does not hinder relations of mutual respect for and sharing with
others. The threshold of tolerance in the weak sense, described above, is
surpassed.
What does moderation mean? That strong and exclusive affirmations can
take place within the family sphere or ones religious group, but to the extent
that they can be the source of discrimination and inequitable treatment of
others, believers must internalize a sort of code for public life to establish
reciprocal relations of respectful collaboration. This attitude concerns not
only those belonging to a minority group whose religious beliefs define a
large part of their social identity and strongly underlie moral choices; it also
Copyright 2010. UBC Press. All rights reserved.

applies to the majority group that, even in a largely secularized society, often
develops expectations of fellow citizens exhibiting a different identity, ex-
pectations requiring that minorities conform to general, implicit social
norms.
Once again, moderation does not develop spontaneously in adults. The
schools curriculum must be inscribed with this lesson, much more than
family or religious organizations, to awaken mutual respect in youth so that
each can live according to her beliefs, at the same time recognizing that she
must impose limits on the expression of these beliefs when relating to others.
To reach this point, the previously described criteria must be implemented:
when the child is assured that her own identity is legitimately recognized
in the school, and when learning gives her access to the tools that permit
her to develop her thinking, moderation is perceived not as a denial of self
but as a way of relating to others who do not adhere to the same beliefs.

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Conceptions of the Good: Challenging the Premises of Deliberative Democracy 33

I would like to emphasize that the capacity for reflexivity and identity
moderation is perhaps more difficult to accept for fundamentalist religious
groups. However, in the sense that these values are not normative constraints
in education and are supported by the goals of tolerance and reciprocity,
they can seem less menacing for the inherited identity. They must be situ-
ated, above all, as conditions that facilitate the social participation of indi-
viduals, whatever the strength and nature of their beliefs.

Conclusion
The objectives presented above seek to define principles that promote the
ability to live peacefully in situations of value pluralism. The goal is not to
obtain an overlapping consensus or to define reasonable values worthy
of expression in public deliberation. Instead, I have outlined the character
dispositions that, developed in the individual, would allow for a modus vivendi
that enables democratic relations between individuals of different funda-
mental beliefs rather than a consensus between irreconcilable values. This
modus vivendi is a way of living based on compromise or interaction that
makes it possible for two parties in disagreement to behave peacefully.
Not all groups fundamentally resistant to liberal values, political participa-
tion, and critical deliberation can be expected to see these goals as beneficial
for their children. It still seems to be plausible, in light of the research I have
undertaken (Milot and Ouellet 2003) comparing members of different fun-
damentalist groups, that some of them can incorporate norms of public
reason without having to translate their beliefs into terms acceptable to
the majority. There will be different degrees of acceptance of these goals,
but this is not a reason to abandon them. I am aware, however, that this
chapter does not resolve a precondition of the program that it puts forward:
cultivating in teachers the capacities for tolerance, reciprocity, and civility
that we have been discussing. I will address this problem in future work.
Copyright 2010. UBC Press. All rights reserved.

Notes
1 I elaborate below on these two principles. Weinstock (2002) puts forth several arguments
challenging the plausibility of the two principles. See also Bickford (1996) and Weinstock
(1999).
2 There have been experimental attempts at a multifaith pedagogy (e.g., in Newfoundland)
or history of religions (in some American states), but these have been only local initiatives.
3 It is quite a different question whether religious schools should be submitted to the same
demands of civic formation as public schools, although I doubt it. My focus in this chapter
remains on public schooling.
4 Note that this question, often asked about fundamentalist religious groups, applies as well
to militant atheists who judge religious beliefs to be a source of alienation and who base
their evaluation of the behaviour of others on moral considerations that are equally con-
troversial. Many atheist parents oppose their childrens subjection to any schooling that
explores religious doctrines.
5 On the concept of the significant other of social action with respect to institutions and
the notion of generality, sometimes translated in sociology as average, see Weber (1971).

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34 Micheline Milot

6 For example, a wilful coup dtat by a religious or ideological group represents a threat to
the survival of liberal democracy, but this is not so with a group living apart from society
or with young women who wear the Muslim veil even if the groups in these latter cases
adhere to illiberal conceptions.
7 From this perspective, it is appropriate, in a democratic society, for fundamentalist religious
groups to publicly oppose laws that clash with their religious beliefs such as same-sex
marriage with the associative and judicial means available to all citizens.
8 Canadian jurisprudence attests to the distinction between social behaviour and personal
beliefs: each person can adhere to the beliefs of her choice, but her freedom to act in ac-
cordance with her beliefs, whether in the private or the public domain, is more restricted.
This interpretation is compatible with the fact that paragraphs 2(a) and (b) of the Canadian
Charter of Rights and Freedoms (which concern freedom of conscience, religion, and ex-
pression) coexist with article 15, which protects against discrimination toward the devout
and non-devout alike. The equilibrium between these rights must respect the viewpoints
of both devout and non-devout. See Chamberlain v. Surrey School District No. 36, [2002]
S.C.C. 86.
9 Reflexivity is equally identified as one of the major characteristics in advanced modernity
(see Giddens 1994).

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2
Religious Belief, Religious Schooling,
and the Demands of Reciprocity
Harry Brighouse

Religious believers appear to bear the lions share of the burdens imposed
by deliberative citizenship. Secularists can embrace the idea that all their
claims concerning political power should be justified according to public
reasons because they do not have compelling non-public, yet non-self-
interested, reasons pressing on them. But religious believers experience
themselves as being bound by reasons that, though not grounded in their
own self-interest, are not readily susceptible to public scrutiny. They may
believe that executing criminals is wrong even when doing so is effective in
deterring crime, cost effective, non-racially biased, and there are completely
reliable processes for identifying perpetrators, because they regard life as
sacred. But if life is sacred so sacred that execution is impermissible even
under those conditions it is not for some publicly accessible reason but
just because God stipulates that it is. They may have a similar stance toward
abortion or the use of pre-emptive war to pursue otherwise legitimate na-
tional interests.
Religious believers also appear to bear a significant burden when a delib-
Copyright 2010. UBC Press. All rights reserved.

erative democracy goes about the process of fostering the traits needed for
good deliberative citizenship. One central mechanism for fostering the traits
of good citizenship is schooling. Whereas fostering the traits that delibera-
tive democrats tend to prize in children from secular households requires
an education entirely consistent with the values and commitments of their
parents, religious parents may look askance at the demands of such an edu-
cation. If it is successful, then their children are more likely to develop habits
and beliefs, and become committed to values, that create a fissure with their
parents. Religious parents, according to some critics of deliberative democ-
racy, are more likely than secular parents to find deliberative values at odds
with their own values and are more likely to object to, and suffer from, the
efforts of the government to foster deliberation in their children.
This criticism is especially telling when we consider the United States and
the kind of schooling that religious parents are free to choose for their

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36 Harry Brighouse

children. Over the past thirty years, non-Roman Catholic religious schooling
has seen a startling increase. In the past fifteen years, home-schooling has
grown with similar rapidity, a great deal (but by no means all) of it among
parents who identify as evangelical or fundamentalist Protestants.1 In most
states, private schooling is subject to very light regulation.2 So children in
these environments are highly likely to have very restricted encounters with
children from other kinds of backgrounds and are unlikely to have their
received views directly challenged and tested.
One response to this observation is to say that the burden is much less
serious than I have suggested because I have tacitly assumed that the demands
of deliberative citizenship are much greater than they truly are. Perhaps,
instead, mere law-abidingness and a willingness to tolerate others are suf-
ficient virtues for the good citizen. But I think that deliberative democrats
do, and should, have a richer and more demanding conception of good
citizenship than that, as I shall explain in the first section of this chapter.
In light of the more demanding conception, around which conflicts really
do arise, it is natural to ask about the place of private religious schooling in
a deliberative democracy. To what extent should the state accede to the
demands of religious parents that their children be spared the kind of educa-
tion that fosters deliberative character?
For the sake of completeness, think of the three alternative stances a state
might have regarding religious schools. It could adopt any of the following
policies.

Prohibit: forbid religious schools and require all children to attend public,
secular schools.
Privatize: maintain public secular schools but allow parents to send their
children to private religious schools at their own expense.
Fund: financially support religious schools, making them either a de jure
Copyright 2010. UBC Press. All rights reserved.

or de facto part of the public school system.

Of course, there are variations within each policy, in particular in the kinds
of regulation to which public schools and, in the cases of privatize and fund,
religious schools will be subject. Even in prohibit, it would be possible to
accommodate religious parents preferences somewhat by, for example,
deferring to their preference that their children be exempt from certain
programs and classes, as is now common practice in public schools with
respect to sex education and in some religious private schools with respect
to religious education.
In this chapter, I ask which of the above policies deliberative democrats
should favour. Although I suspect that prohibit is usually the wrong policy,
I think there is a case to be made for both of the others. However, I think
that, in the circumstances of most modern democracies, a policy of fund

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Religious Belief, Religious Schooling, and the Demands of Reciprocity 37

within an appropriate regulatory framework is probably the best. I make


most of the argument for this claim in the third section. In the first section,
I defend the idea that good democratic citizens should embrace the demand-
ing norm of reciprocity. But I also argue that this norm is less demanding
on religious believers than some of its critics have supposed it to be. In the
second section, I tentatively argue that liberals who advocate this norm
should adopt a strategic goal of minimizing the degree of adherence to
unreasonable comprehensive moral views and should adapt their proposals
for education policy to that end. And in the third section, I tentatively make
the case for fund with appropriate regulations as the best stance toward re-
ligious schools.

The Demands of Legitimate Citizenship


William Galston (2002) argues that deliberative democracy is too demanding
on the motivations of citizens. He quotes the norm of reciprocity in public
political debate proposed by Amy Gutmann and Dennis Thompson (1996,
57): Any claim fails to respect reciprocity if it imposes a requirement on
other citizens to adopt ones sectarian way of life as a condition of gaining
access to the moral understanding that is essential to judging the validity
of ones moral claims. Galston then comments as follows:

It may well make sense to urge all citizens to do their best to translate their
commitments into terms that can be understood by citizens who do not
share them. But the norm of reciprocity should not be interpreted to screen
out the kinds of core beliefs that give meaning and purpose to many lives.
This caveat is especially important in the United States, where levels of re-
ligious belief and observance are far higher than in any other industrialized
democracy. It is difficult to believe that any liberal democracy can sustain
conscientious support if it tells millions of its citizens that they cannot
Copyright 2010. UBC Press. All rights reserved.

rightly say what they believe as part of democratic public dialogue. (116)

Galston makes a distinction between offensive and defensive claims in


public debate the former assert that other people should do as I say, the
latter that I need not do as they say and asserts (but as far as I can see does
not really argue) that, for defensive claims in particular, it is important to
have an inclusive understanding of public reason. It is, in other words,
important to recognize the propriety of advancing reasons that are not ac-
cessible (on a natural understanding of accessible) to those citizens who are
being asked to refrain from advancing coercive action by the state.
At first glance, the norm of reciprocity does seem extremely demanding,
and Galstons demand concerning its interpretation seems to be a plea, really,
to reject it, at least for defensive claims. I suggest, however, that the norm
is not as demanding as it might seem, at least on reasonable citizens, and

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38 Harry Brighouse

that when we apply it to policies concerning the schooling and education


of minors, Galstons request that we refrain from applying it in the case of
defensive demands does not get us very far. The reason is that members of
religious or cultural minorities typically are not asking other citizens to allow
them to do what they want to themselves but are asking others to allow
them to do things to other people, their children. Nevertheless, Galston is
right to worry about how demanding the norm is on citizens who adhere
to unreasonable comprehensive moral views. For them, indeed, it is extremely
demanding, and pointing out to them that their children are independent
and separate persons is not likely to have the desired consequences, especially
because liberal democracies (for reasons that I think are good; see Brighouse
and Swift 2006) allow parents considerable de facto power over their childrens
lives. However, parents typically (and rightly) regard themselves as having
extensive rights over the kind of upbringing their children will have and
the content of their education. In practice, their rights concerning upbring-
ing are rarely contested; the policy arena in which these issues are fought
out is education.
Although it will be familiar to many readers, I want to mention a particular
case that focuses our attention on the question of the extent to which the
state may try to inculcate in children the traits of deliberative citizenship
and the extent to which it should defer to parents. It is the famous case of
Mozert v. Hawkins (Bates 1993). In this case, a group of fundamentalist parents
in Tennessee sued the local public school district to demand the exemption
of their grade school children not from schools but from a civic education
program using readers that, the parents claimed, conflicted with their reli-
gious beliefs. The offending passages included a comment from Anne Franks
Diary of a Young Girl that perhaps unorthodox belief in God is better than
no belief at all and a picture showing a boy making toast for a girl, which
contradicted the traditional sex roles the parents claimed were demanded
Copyright 2010. UBC Press. All rights reserved.

by the Bible. The district refused to exempt the children from the program,
and as a result the parents sued, claiming that their first amendment rights
were abridged. The parents withdrew their children from school while the
legal battle was fought, until, finally, the case was found against the parents
and for the district. However, the story does not end there. I come back to
it in the third section.
The civic education curriculum in Mozert had the rather modest aim of
acquainting children with a variety of perspectives on how to live in order
to promote a moderate tolerance. The norm of reciprocity is, as we have
seen, more ambitious, and promoting it directly might take a more demand-
ing and, to the Mozert parents, even more troubling curricular reform. Are
there any reasons for adopting it? The norm of reciprocity has its roots in
John Rawlss principle of legitimacy. The fact of reasonable pluralism gives

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Religious Belief, Religious Schooling, and the Demands of Reciprocity 39

rise to the question of the circumstances in which it is legitimate for the


government to coerce its citizens. Rawlss theory of legitimacy provides the
following answer: Political power is legitimate only when it is exercised in
accordance with a constitution the essentials of which all citizens, as reason-
able and rational, can endorse in the light of their common human reason
(2001a, 41; emphasis added).
Notice that Rawls does not require that the essentials actually be endorsed
in light of our common human reason, only that all citizens as reasonable
and rational can endorse the essentials. This is substantially weaker than an
actual endorsement constraint, at least if it is the case that our common
human reason underdetermines the propriety of the constitutional essentials.
However, if we note the fact of reasonable pluralism and the indeterminacy
of our common human reason even with respect to constitutional essentials
and take them, in combination with the obligation to respect the status of
others as reasoning beings, as generating the principle of legitimacy, then
the potential endorsement interpretation of the principle of legitimacy looks
a little too weak. A state that is satisfied with its legitimacy despite widespread
and reasonable non-consent to its constitutional essentials, simply because
reasonable people could endorse those essentials, seems less legitimate than
one that strives to win the assent of reasonable dissenters. So the state should
pursue political strategies that, other things being equal, make it more rather
than less likely that more people will come to actually endorse the constitu-
tional essentials in light of their common human reason. (I will return to
this point.)
What does Rawlss principle of legitimacy require of citizens? In particular,
how does it support Gutmann and Thompsons (1996) norm of reciprocity?
At one point, Rawls says that a stable constitutional regimes basic institu-
tions should encourage the cooperative virtues of political life: the virtues
of reasonableness and a sense of fairness, and a spirit of compromise and
Copyright 2010. UBC Press. All rights reserved.

willingness to meet others halfway. These virtues underwrite the willingness


if not the desire to cooperate with others on terms that all can publicly ac-
cept as fair on a footing of equality and mutual respect (2001a, 116). A
stable constitutional regime should also encourage the duty of civility, which
requires us in due course to make our case for the legislation and public
policies we support in terms of public reasons, or the political values covered
by the political conception of justice (or one of a suitable family of such)
(90). Advancing policies that can be justified only by appeal to reasons that
get their force from our comprehensive conceptions of the good treats our
fellow citizens not as cooperators but as objects of our will. To avoid this,
we must appeal to reasons that are, in the relevant sense, public.
Let us suppose that such a stricture does mean, for example, that one
cannot argue for policies (even defensive policies) on grounds of personal

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40 Harry Brighouse

revelation or by appealing to sacred texts. How demanding is it on people


who believe that they are privy to personal revelations or fortunate enough
to know which sacred texts are authoritative?
In fact, it might not be as demanding as Galston supposes. Consider some-
thing else Rawls says when discussing public reason. Citizens are not pro-
hibited from introducing and discussing reasonable comprehensive doctrines
in public debate: People are in general free to do this. It has the advantage
of citizens informing one another where they come from, so to speak, and
on what basis they support that public political conception of justice (2001a,
90). So, whereas in the process of advancing legislation citizens are required
to refrain from relying on reasons they find compelling, but that they know
other reasonable people cannot find compelling, in the process of engaging
in the public political culture they are freed from any such constraint. They
can make use of such reasons in public speeches, newspaper articles, television
debates, arguments with friends, et cetera. Indeed, Rawls (like, I presume,
other deliberative democrats) sees laying out ones own comprehensive view
in public as having a great deal of value. The norm of reciprocity applies not
to democratic public dialogue, as Galston interprets it, but only to a rather
small (though obviously very important) fraction of this dialogue that
directed at passing or preventing legislation.
To see the other reason that the restriction is less demanding than Galston
suggests, we have to look at how Rawls understands what makes a compre-
hensive conception of the good reasonable. He deliberately refrains from
providing a thorough and exhaustive definition of reasonableness, but he
does say this: A reasonable doctrine must recognize the burdens of judg-
ment and so, among other political values, that of liberty of conscience
(2001a, 191). What does it take to recognize the burdens of judgment? The
sources of reasonable disagreement ... among reasonable persons are the
many obstacles to the correct (and conscientious) exercise of our powers of
Copyright 2010. UBC Press. All rights reserved.

reason and judgment in the ordinary course of political life (35).


The burdens of judgment include that the empirical facts concerning any
particular case are hard to assess; that people can reasonably assign different
weights to agreed-on considerations; that our concepts are vague enough
that they are indeterminate in hard cases; and that our differing individual
personal experiences shape how we assess evidence and weigh moral and
political values (Rawls 2001a, 35-36).
Just to be clear, the adherent of a reasonable comprehensive moral view
need not reject moral commitments she knows others cannot share in light
of their common human reason. She can believe not only that scripture is
morally authoritative for her but also that it is authoritative for all, even
those who do not recognize its authority and even though their inability to
recognize its authority is the consequence of the burdens of judgment and

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Religious Belief, Religious Schooling, and the Demands of Reciprocity 41

not some character flaw. They can believe all these things: what makes them
reasonable is that they recognize the burdens of judgment and are, because
of this recognition, unwilling to foist their views onto others by force of law
(i.e., they acknowledge the value of liberty of conscience).
Now, it is possible for someone to be unwilling to foist her views on others
by force of law but to use her views as justification of some law. I am not
trying to change their view, just their behaviour. But acknowledging the
burdens of judgment, one develops habits of mind and argumentative dis-
positions that incline one to appeal to public reasons (more exclusively
construed) rather than private reasons when thinking about and arguing in
favour of public policy options. It is simply not so demanding for people
who have acknowledged the burdens of judgment to refrain from using
private reasons to justify public actions as it is for people who have not yet
acknowledged the burdens of judgment. Adherents of what Rawls thinks of
as reasonable comprehensive conceptions do not experience the norm of
reciprocity as a great demand.
By contrast, adherents of unreasonable conceptions may indeed experience
them as very demanding. But what is the difference between reasonable and
unreasonable conceptions? In the US context, it is easy to think that there
are vast differences. On the one hand, we have the archetypal fundamentalist
Christian who believes that scripture impugns homosexuality, abortion,
sexual licence, et cetera. He seeks to use the law to enforce these norms and
coalesces with his fellow fundamentalists not only on these issues but also
in favouring vouchers for religious schools, opposing welfare and universal
health care, and supporting low taxes and widespread gun ownership. On
the other hand, we have the stereotype of the suburban liberal who rejects
all the same positions, does not believe in God, supports a strict understand-
ing of the separation of church and state, et cetera. The unreasonable and
the reasonable comprehensive views look as different as chalk and cheese.
Copyright 2010. UBC Press. All rights reserved.

But Rawls is right to focus on just one difference between reasonable and
unreasonable comprehensive conceptions: acceptance of the burdens of
judgment. Two people can believe the same things about what is morally
required of and permissible for them, and they can agree that the same is
required of and permissible for others, while disagreeing on just one thing:
the extent to which they should use those beliefs to justify coercive political
action. The explanation of this one difference lies in their different stances
toward the burdens of judgment. For the reasonable fundamentalist, the
norm of reciprocity is no more demanding than it is for the agnostic sub-
urbanite. So there is no need for the norm of reciprocity to undermine the
loyalty of citizens even on an exclusive interpretation of it and even in a
society such as the United States in which levels of religious belief and ob-
servance are higher than in any other industrialized democracy.

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42 Harry Brighouse

Of course, it could be that in fact religious believers and observers in the


United States are, in good numbers, not reasonable in Rawlss sense. If so,
then the exclusivist interpretation of the norm of reciprocity will strain their
attachment to the polity. This is an empirical question, but I suspect there
is some truth to the suggestion. Three things seem to me to be true of the
United States and not of other industrial democracies. There is a high level
of religious belief; among religious believers, there is a high level of funda-
mentalism; and fundamentalists tend to converge politically. This third fact
is very important. Something like fundamentalist Christianity exists in many
churches in the United Kingdom and in most other European democracies.
But it is not a political force, not only because it lacks a critical mass, but
also because it is spread across the political spectrum. You are, admittedly,
unlikely to find a fundamentalist Christian in Britain campaigning for a
lowering of the age of consent for homosexuals. However, you are as likely
to find one supporting as opposing tax hikes for public education and the
national health service and as likely to find one supporting as opposing a
firefighters or miners strike or a strategy of privatizing public services. Fun-
damentalism (or at least fundamentalist Christianity) is not necessarily
unreasonable. I conjecture that its apparent unreasonableness in its contem-
porary US version is due to the success political entrepreneurs have had in
forging a political coalition that has channelled fundamentalists in a single
political direction, despite the fact that their core moral beliefs do not imply
that political direction. This success makes it harder for them to see, as a
matter of course, that even people who share their comprehensive concep-
tion of the good reasonably disagree about political matters and thus makes
it harder for them to acknowledge, and internalize the moral/political sig-
nificance of, the burdens of judgment as they pertain to political matters.

Promoting Reasonableness
Copyright 2010. UBC Press. All rights reserved.

So the requirements of deliberative citizenship are much less demanding on


reasonable people than Galston seems to assume, and religious belief, even
of the variety that most concerns him, is compatible with reasonableness.
The costs of compliance for unreasonable people, however, are very high.
A liberal polity cannot sustain the conscientious support of the unreasonable
if it tells them they cannot advance some of what they believe as justifica-
tions for the coercive use of state force.
How should someone committed to Rawlss principle of legitimacy respond
to this problem? There are two obvious responses. The first is just to dismiss
the problem. The conscientious support of the unreasonable does nothing
to legitimate the state. Furthermore, their dissent does not reflect badly on
its legitimacy. So there is no real matter of principle here: the state should
work around the unreasonable and defer to them as much as is necessary

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Religious Belief, Religious Schooling, and the Demands of Reciprocity 43

for it to remain free to perform its functions, but it should not worry about
them. The second response is more appealing to me: the state should assume
that unreasonableness is remedial and should strive to win over the unreason-
able to the values of reasonableness.
How should the state pursue the project of, if you like, diminishing un-
reasonableness? A great deal of recent philosophical literature has focused
on the public regulation of schooling as the key mechanism for producing
reasonable citizens (see Callan 1997; Gutmann 1987; Macedo 2002). The
public regulation of schooling is, not coincidentally, liable to be a battle-
ground on which even otherwise reasonable people appeal to their sectarian
conceptions of the good.
How would we have to regulate schooling to produce reasonable citizens?
Rawls includes a useful, if sometimes puzzling, answer to this question in
his explanation of why justice as fairness is a political, not a comprehensive,
version of liberalism:

Various religious sects oppose the culture of the modern world and wish to
lead their common life apart from its foreign influences. A problem now
arises about their childrens education and the requirements the state can
impose ... [Political liberalism] will ask that childrens education include
such things as knowledge of their constitutional and civic rights, so that,
for example, they know that liberty of conscience exists in their society and
that apostasy is not a legal crime, all this to ensure that their continued
religious membership when they come of age is not based simply on ignor-
ance of their basic rights or fear of punishment for offenses that are only
considered offenses within their religious sect. Their education should also
prepare them to be self-supporting; it should also encourage the political
virtues so that they want to honor the fair terms of social cooperation in
their relations with the rest of society.
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Here it may be objected that requiring children to understand the political


conception in these ways is in effect, though not in intention, to educate
them to a comprehensive liberal conception. Doing the one may lead to the
other, if only because once we know the one we may of our own accord go
on to the other ... But the only way this objection can be answered is to set
out the great differences in both scope and generality between political and
comprehensive liberalism as I have specified them. The unavoidable conse-
quences of reasonable requirements for childrens education may have to
be accepted, often with regret ... It is fundamental that, beyond the require-
ments already described, justice as fairness does not seek to cultivate the
distinctive virtues and values of the liberalisms of autonomy [Kant] and
individualism [Mill] or indeed of any other comprehensive doctrine. (2001a,
156-57)

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44 Harry Brighouse

I want to make an aside before discussing how this passage answers our
question. At the foundation of justice as fairness is the idea of free and equal
citizens possessed of the capacities for a sense of justice and a conception
of the good and a higher-order interest in developing and exercising those
capacities. The capacity for a conception of the good includes a capacity
rationally to revise ones conception of the good, which sounds much like
an ideal of autonomy. This fact makes Rawlss attempt to distinguish his
theory from comprehensive theories questionable, and it casts doubt on his
implicit lesson that children can be exempted from the kind of educational
practice that we expect to contribute to their becoming autonomous persons.
However, Rawls is clear in this passage that children may not be exempted
from the educational practices that can be expected to contribute to the
development of their effective sense of justice and in particular to encour-
age the political virtues, which importantly include the duty of civility.
The state should not exempt children from such educational practices, even
in deference to parental interests and even if doing so will not jeopardize
the (conventionally understood) stability of the democratic polity.
Galston believes that some religious parents will object to these kinds of
practices and recommends a policy of deference. Rawls recognizes the pos-
sibility of objections and implicitly rejects deference. The reason, I think,
is internal to justice as fairness. Justice as fairness ideally needs everyone to
be reasonable, not just enough people to maintain a (conventionally) stable
state. Any who do not acquire the habits and dispositions of reasonableness
are locked out of the process of public justification. They become people
toward whom the state cannot legitimately act and whose participation in
public decision making will often be oppressive of others. They are locked
out of the public reason-giving community, not through their own fault or
that of the rest of society but because their parents have locked them out.
Galston treats the objections religious parents make to the kind of civic
Copyright 2010. UBC Press. All rights reserved.

education recommended by Rawlss principle of legitimacy and Gutmann


and Thompsons norm of reciprocity as defensive claims: he treats them as
claims that I need not do as you say, and, as we have seen, he thinks that
citizens can be exempt from the requirement to give public (or accessible)
justifications of those kinds of claim. But as I indicated in the introduction,
this does not help in this case. Religious parents are not demanding permis-
sion to do as they judge best in these matters. They are demanding that their
children not have to do as other people say. Galstons proposed inclusive in-
terpretation of the norm of reciprocity when justifying defensive claims does
not help here because, properly understood, the demand for exemption from
Rawlss civic educational curriculum is not a defensive claim. So even Gal-
stons inclusive interpretation of the norm of reciprocity for defensive claims
does not justify deference to religious parents in these matters.

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Religious Belief, Religious Schooling, and the Demands of Reciprocity 45

Promoting Reasonableness through Education Policy


I have claimed that the requirements of deliberative citizenship are not too
demanding and that the proper response of a liberal state to manifest un-
reasonableness is to eliminate it. Now I want to turn to the substantive
question of the best way to do so. In particular, is it appropriate for the state
to share authority over schooling with, or delegate it to, religious organiza-
tions? Should the state allow, and perhaps even fund, religious schools?
I look at this question here solely with regard to the aim of producing
deliberative citizens. Other considerations should, in my view, properly
influence policy regarding schooling. Design of the education system should
take account of childrens prospective interests in autonomy and in having
a reasonably pleasant time in school, parents legitimate claims (whatever
they are), the principle of equal opportunity, and other considerations of
justice. I neglect these issues here in order to provide a sharper focus on the
issue of promoting deliberative citizenship.
How should we approach this problem? Here is a standard, and I think
misguided, approach to addressing the question. First, we identify a certain
secular goal in this case, adequately promoting the trait of reasonableness
that, we think, the school should have to meet in order to enjoy the priv-
ilege of state funding. Meeting this goal is considered either a necessary or,
sometimes, a sufficient qualification for funding. Then we argue about
whether or not religious schools do, or could, meet those goals.
Why is this approach wrong? First, it is wrong because we have at least
to compare the performance (or predicted performance) of religious schools
with that of non-religious schools. Far too much public commentary criti-
cizes religious schools on various grounds by comparing their actual (or
predictable) performance with that of some ideal common school rather
than with either that of actual public schools or that of the public schools
we really could expect to have if we abolished religious schools. There is a
Copyright 2010. UBC Press. All rights reserved.

question here about how much attention we want to address to questions


in ideal theory and how much we want to be constrained by non-ideal
circumstances. I think that many of the most interesting questions about
education and schooling arise only in non-ideal circumstances, and I assume
some non-ideality (though I am not sure how non-ideally I am thinking).
Second, when asking whether some type of school should be part of some
policy, it is never right to look at the effectiveness of that type of school.
Instead, we must look at the net contribution that we can expect it to make to
the effectiveness of the system of which it is a part. So, for example, we might
find that religious schools are very good at promoting deliberative character
in the children who attend them but to the detriment of the ability of other
schools to do the same and to the net detriment of the system of schooling
as a whole.

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46 Harry Brighouse

Consider an analogous point about the empirical literature on school ef-


fectiveness and improvement.3 Policy makers like to look at the effectiveness
debates because they understandably want to make schools more effective
(where effectiveness is understood, crudely, as improving academic outcomes,
as measured by various crude tests). But one school frequently gains in ef-
fectiveness at the expense of other schools. Suppose that a mediocre school
appoints a dynamic and charismatic principal. Given the way in which real
labour markets actually work, it is highly unlikely that the principal has
been drawn away from the manufacturing, financial services, or even higher
education sector.4 Much more likely is that she has effectively been drawn
away from another school. Suppose that teaching quality affects school
quality and that, having heard about the innovative practices and brilliant
leadership in this school, teachers in other schools apply in greater numbers
for new vacancies, so that the principal can draw on an improved talent
pool in making appointments. Again, it is unlikely that, at least in the short
to medium term, talent will be drawn away from the non-teaching sector.
This schools gain is probably another schools loss. The lesson here is that
what makes one school better can simply make other schools worse, so from
success of some school or type of school within a given environment we
cannot conclude that the school or kind of school will succeed in a changed
environment.
It could be true, for example, that religious schools themselves excellently
facilitate deliberative character but that doing so makes it very difficult, or
even impossible, for non-religious schools to do so. In that case, their per-
formance, considered as a sector, would not count in favour of funding or
even permitting them. How might religious schools make it more difficult
for non-religious schools to promote deliberative character? It might be vital
for the development of deliberative character in children from non-religious
backgrounds that they are in frequent and regular contact with children
Copyright 2010. UBC Press. All rights reserved.

from religious backgrounds who, in a system allowing religious schooling,


are siphoned away from them into religious schools. By contrast, most re-
ligious schools might contain a sufficient diversity of outlooks for delibera-
tion to be well facilitated, and, of course, children from religious backgrounds
might routinely encounter non-religious and anti-religious perspectives on
life outside their home and school lives (especially as they reach adolescence
and gain more independence).
Third, we should not assume that schools can compensate for the back-
ground public culture in the development of character, nor should we assume
that the structure of schooling policy will have no effect (or have only the
effects that we want it to have) on the background political culture. What
matters is not whether a kind of school makes the children in it reasonable,
or whether the overall system of schools promotes reasonableness, but the
extent to which it promotes reasonableness in children, by whatever agency.

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Religious Belief, Religious Schooling, and the Demands of Reciprocity 47

Policies in compulsory schooling designed to promote reasonableness within


schools may nevertheless inhibit the development of reasonableness by
prompting behaviour from the interested parties or backlashes within the
public culture that make it less hospitable to reasonableness. Consider a
hypothetical world in which the broadcasting and print media are infused
with a Reithian ethic of serving the educational and deliberative interests
of the public and in which children therefore encounter and engage with
numerous models of public reasonableness in their leisure time. In such a
world, we would try to make sure that the school system did not cancel out
the lessons learned in civil society, but we would be free to emphasize other
educational priorities.
Taking these objections to the standard approach into account, we can
describe a different, and better, approach to the problem. We ask what place
religious schools would have in an overall system of school regulation,
provision, and funding that would, in the circumstances, best secure the
goal of producing reasonable citizens, taking into account (at least) three
considerations. First, schools are not the only institutions influencing
whether these children become reasonable citizens, and the system of school
provision regulation and funding might itself have an impact on how well
other institutions (the family, civil society) contribute to that end. Second,
religious schools, whether they receive funding or not, will influence how
well secured those goals are, and decisions about funding will affect the
character of the unfunded sector, which will in turn affect both the funded
schools and the non-school institutions. Third, schools affect one another,
and funding decisions about one school will affect the character of others.5
If we adopt this framework for thinking about whether to allow, and
whether to provide state support for, religious schooling, then we can see
what is wrong with one response to the problem. One common response
runs along the following lines.
Copyright 2010. UBC Press. All rights reserved.

Public schooling is (partly) about producing reasonable citizens who can


engage with each other respectfully across comprehensive conceptions of
the good. This aim is best served by providing all children with a secular
education in which they learn about each others religious views but in
schools that are not run by religious organizations and do not incorporate
a spiritual dimension. If some parents insist on a religious education for
their children, they can withdraw from public education and send their
children to religious schools at their own expense.
Sometimes this response is supplemented by an exaggerated exhibition of
respect for religious freedom and expression of the fear that if religious schools
are funded by the state, they would also become subject to state regulation,
with consequent compromising of religious liberty.6 It is also sometimes
supplemented with the assumption that if the government merely tolerates
and does not fund religious schools, citizens are not implicated in what

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48 Harry Brighouse

happens to the children in those schools. Anthony Grayling is quoted as


saying that, given the great harm that religions do ... in the way of conflict,
war, persecution and oppression and preventing the growth of science and
freedom of thought, I object profoundly to my taxes being used to this end
(quoted in Dean 2001, 89).
What is so wrong with this response (which is the dominant liberal view,
I think, in American politics today)? First, the distinction between public
and private education is entirely artificial. The state has an obligation to
ensure that children get the education (whatever that is) to which they have
a right, so all children (and all schools) fall within the remit of public
education. The state is the guarantor of last resort that children get the
educational provision to which they are entitled. If it judges that allowing
and regulating private schools serves that end efficiently, then it bears re-
sponsibility for that judgment and, by virtue of its role as guarantor of last
resort, it bears responsibility for what happens in those schools. The voter
cannot escape his implication in the decisions the state makes or the con-
sequences of those decisions. At the fundamental level, in other words, all
schooling is ultimately a public responsibility and unavoidably so. As long
as the government allows religious schools, all citizens are implicated in
what happens within them and what happens elsewhere as a result of tol-
erating them.
Second, suppose (implausibly, but more on that later) that religious schools
cannot participate in producing the desired outcome (deliberative citizens).
Why should the institutions that can uniquely produce the right outcome
exclude the children of religious parents? If religious schools are peculiarly
ill suited to producing deliberative citizens, then that is surely because there
is something in the content of those religious views that inhibits deliberative-
ness, in which case the children who are withdrawn into them are presum-
ably the very children in need of an effective citizenship education!
Copyright 2010. UBC Press. All rights reserved.

And third, the response ignores the effects of its own policy on aspects of
civil society other than schools. Here are three possible, and worrying, out-
comes of such a policy.

1 Religious entrepreneurs can make use of the inevitable controversies


over public schooling to exacerbate divisions and harden barriers be-
tween the ways of life.
2 Reasonable religious parents who want education with a spiritual dimen-
sion have to choose between the crazies and us. The market for moderate
religious schooling is undermined.
3 Religious organizations come to have a stake in the continued division
and do not collaborate with secular society in the common project of
producing citizens (e.g., UK Muslims who get funding are moderates,

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Religious Belief, Religious Schooling, and the Demands of Reciprocity 49

strengthened by the funding within their communities, whose political


outlook becomes more reasonable).

All three of these possible outcomes affect civil society in ways that make it
less conducive to the development of reasonable citizens, which in turn
makes it more urgent and simultaneously more difficult for schools to suc-
ceed in that task.
Now think about the market conditions religious organizations with un-
reasonable outlooks that run schools face when the state adopts the response
described above. Presumably, many parents, reasonable and unreasonable,
want for their children schooling with a spiritual component. They can get
it only by going outside the public school system. Given that local markets
can support only a limited number of schools, and depending on the popu-
lations distribution between reasonable and unreasonable outlooks, many
reasonable parents may face a stark choice between purely secular school-
ing on the one hand and unreasonable religious schooling on the other.
Some perhaps many will choose the latter. To the extent that they do
so will compound the problem of unreasonableness: not only do the un-
reasonable reproduce their unreasonableness in their children, but they also
have the ability to compromise the children of some of the reasonable.
So policy makers should take into account the anticipated effects of pro-
posed policies on those other institutions that shape citizens. If religious
schooling is to be permitted, especially if it is to be lightly regulated, then
it will have a profound effect on how parents react to the regime within the
public schools, with consequent effects on the formation of reasonable
citizens. Under a regime that permits lightly regulated private religious
schools, it might well be better to pursue funding for religious schools on
the condition that they meet certain regulations.
Consider the dilemma of UK governments concerning funding for Islamic
Copyright 2010. UBC Press. All rights reserved.

schools. The UK government has a long-standing practice of collaborating


with religious organizations primarily, but not exclusively, the Roman
Catholic Church and the Church of England in the provision of schooling.
Most larger cities have at least one Catholic and at least one Anglican state-
funded secondary school, and most have several religious elementary schools;
indeed, in many older cities, religious elementary schools are more common
than secular schools. When these arrangements were established (1944),
very few Muslims lived in Britain; now many do, and they are concentrated
in several cities. Muslims, naturally enough, want state-funded Muslim
schools, and these demands began to be pressed in the 1980s, just as support
for state funding of religious schools was beginning to wane and after the
growth of the womens movement had made many aspects of schooling
that Muslims find appealing seem objectionable. In particular, many Muslims

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50 Harry Brighouse

want single-sex schools for their daughters and hold conservative views
about sex education and the place of women in society generally.
Should the UK government fund Muslim schools? Let us address the ques-
tion using the considerations I have recommended. First, the states choice
is not between having Islamic children attend secular state schools and
having them attend Muslim schools. As long as Muslim schools have per-
mission to operate in the private sector, for many parents the choice is be-
tween having their children attend private Muslim schools and having them
attend state-supported Muslim schools. The government can, will, and
should use the power to fund schools in a way that supports those Islamic
schools most likely to promote engagement with the mainstream culture
(because those are the schools that are most likely to best promote democratic
character in their children). The enhanced status of the leaders of these
schools affects the balance of power within British Islam in favour of inte-
gration and toleration. Against this background, the case for funding, on
the ground of the desirability of promoting religious character, is strong.
Funding the schools helps deprive sectarian entrepreneurs of imagery and
anecdotes suggesting that the state has contempt for Islam. It strengthens
the market position of a kind of schooling that reflects Islamic values but
does so without separating it from the common project of educating all
children, and it does these things without consigning children to a more
sectarian schooling than they would otherwise experience.
The facts could be different. It could be that the better achievement of
relevant goals would be through non-funding. If the Muslim community
in Britain is highly integrationist, and has the resources to break down the
barriers presented by segregation and outright racism, it might be that
Muslim schools would in fact house the children of a residue of sectarians
and hence undermine efforts to promote deliberative character, at least in
these children. I suspect that the facts on the ground are not like this, that
Copyright 2010. UBC Press. All rights reserved.

there is indeed a great variety of attitudes toward integration within the


Muslim community, and that community by itself has very limited ability
to overcome the barriers to integration presented by the society in which
it is nested. But it is important to emphasize that the path I propose involves
conjectural judgments both about the facts on the ground and about the
likely dynamic effects of the funding/regulating regime; I am, in this chapter,
simply making assumptions to illustrate the way in which the final judgment
would be made.
What about the situation in the contemporary United States? It seems to
me, though I cannot give anything like conclusive evidence for it, that one
of the explanations of the unreasonableness of US fundamentalist Christians
is the success that religious and political entrepreneurs have had in repre-
senting the mainstream culture as deeply hostile to religious and spiritual
perspectives. The absence of a spiritual dimension to any public schooling

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Religious Belief, Religious Schooling, and the Demands of Reciprocity 51

has been crucial to this success. Fundamentalist parents see public schools
as replicating much of the materialist outlook that prevails in the public,
and especially in the commercial, culture, and some of this outlook at least
manifestly evinces hostility to many of the values religious believers might
be expected to endorse. So it is easy to present public schools as actively
hostile to religiosity. Among fundamentalists, stories abound of children
sent home from school for reading the Bible in free reading time or legal
challenges to voluntary prayer groups. There is often a grain of truth in these
stories, easily exaggerated and manipulated by entrepreneurs with an agenda,
in a world in which the truth about such matters is not readily available.
Even when they do not have a kernel of truth, these stories are believable
to people who see children smoking and littering with impunity outside the
school doors and are aware of the impersonality and disciplinary regimes
in many public high schools.
Suppose that the state collaborated with religious foundations to provide
schools regulated so that they would educate for deliberative and reasonable
citizenship and so that, while they could admit students of their own faith
in sufficient numbers to maintain a critical mass, beyond that they could
not discriminate against students from families of other faiths or no faith.
This approach might help, in the long term, both to undercut the market
for schooling of a kind less conducive to reasonableness and to undermine
the ability of religious entrepreneurs to portray the government and public
schooling as hostile to religion and religious values. It might also lead to
greater integration even within schools of children from different faith and
no-faith backgrounds, to the benefit of the development of reasonableness
among the children, it being easier to develop the habits and dispositions
of reasonableness in public discourse if one has direct experience of those
toward whom one has to be reasonable!
The suggestion here is that if we rule out the option of prohibiting religious
Copyright 2010. UBC Press. All rights reserved.

schools, the option of funding might, at least with the right regulation, be
more conducive to the educational goals of deliberative democrats than the
option of privatizing.
I promised to complete the Mozert story I began earlier. I do so now because
I think that it is a fine illustration of how things can go wrong under a regime
of privatizing religious schools. The court, as I said, found for the school
district: it found that the district was entitled to refuse to exempt the children
from the civic education curriculum. So the case might look like a victory
for the promotion of reasonableness through public schools. But it looks
that way only if we refrain from completing the story. After the court found
against the parents, the parents permanently removed their children from
the public schools and sent them to Christian fundamentalist schools that
they had established. When Holt published the next edition of the readers,
it excised all the passages to which the Mozert parents had objected. Then,

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52 Harry Brighouse

perhaps most damaging of all, the story began to circulate, in garbled ver-
sions, among fundamentalists.7 If peer effects matter, then a consequence
of the resolution of the issue was that both the Mozert children and their
non-religious peers now attended schools in which they were less likely to
develop the trait of public reasonableness; if the curricular materials matter,
then both sets of children (and many others besides) would subsequently
use readers that were less likely to be effective in promoting toleration and
reasonableness. The way in which the story was disseminated likely increased
rather than diminished the sense of alienation that fundamentalists feel
from secular society, with predictable consequences for their own inclination
to be reasonable in Rawlss sense.
I say this not as a criticism of the court decision (which may, for all I know,
have been a proper interpretation of the law) or of the officials involved
(who may, for all I know, have been making what seemed to them the right
strategic judgment in light of the evidence available to them). But I am
pointing out that deliberative democrats have little to cheer in the all-things-
considered outcome of the case. Insofar as promoting deliberative character
is a legitimate function of the education system, the Mozert outcome impeded
rather than served that function.

Concluding Comments
Galston is wrong in taking the norm of reciprocity to be too demanding,
even for the extremely religious. The state that seeks to realize Rawlss theory
of legitimacy will try to promote reasonableness. My conjecture in the third
section, though, is that the strategy to achieve this may involve the state in
a good deal of deference to religious parents on educational matters. But the
deference it offers should be engaging deference it should try to collaborate
with religious parents in the provision and regulation of schooling, because
such a strategy holds out greater promise both of taming the unreasonable-
Copyright 2010. UBC Press. All rights reserved.

ness of some religious parents and of fostering it in the children of non-


religious parents.

Notes
1 All figures on home-schooling are rough estimates, but there is a consensus that growth
has been rapid since the mid-1980s. Kurt Bauman (2002) of the US Census Bureau offers
estimates of 356,000 in 1994 and 791,000 in 1999. Estimates of 1 million or more are now
common.
2 See Dwyer (2002) and Peshkin (1988) for accounts of how unregulated some schools and
schooling experiences are.
3 This is a central point in Thrupp (2001); see Gewirtz (2001).
4 In UK schools, principals are paid much better than successful academics, and movement
between the sectors is relatively easy, but I dont know of many cases of principals being
drawn from academia.
5 I apply this framework with respect to a broader set of educational goals in Brighouse (2005a,
2005b).

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Religious Belief, Religious Schooling, and the Demands of Reciprocity 53

6 Sandra Feldman (1999), opposing vouchers for religious schools, says that, for religious
schools, public scrutiny and accountability raise issues of religious freedom; the deep infu-
sion of religion throughout their curriculum and lessons is essential to them, as is their
freedom to require children to attend religious services. They dont want state interference
in any of that. Yet, accountability to the broader public must go along with public
funding.
7 I have only anecdotal evidence of this: I have several times encountered inaccurate versions
of the story, first in an argument with a fundamentalist relative some ten years after the
fact.
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3
Religious Education and
Democratic Character
Paul Weithman

My faith in the constitution is whole, it is complete, it is total.

US Congresswoman Barbara Jordan during the


Watergate hearings (Holmes 2000, 95)

The reproduction of democracy requires that succeeding generations of


citizens acquire the skills and habits they need to govern themselves. Ac-
cording to deliberative democracy, citizens should govern themselves on the
basis of public deliberation, a process of political decision making character-
ized by the exchange and evaluation of reasons for political outcomes. The
reproduction of a deliberative democracy therefore requires that succeeding
generations of citizens acquire the qualities they need to engage in this
process.1 Clearly, if deliberative democracy is to prove a viable theory of
democratic politics, its proponents will have to say something about how
citizens acquire these qualities of character.
Most deliberative democrats would agree that democratic character forma-
Copyright 2010. UBC Press. All rights reserved.

tion cannot be left to chance or to the felicitous movement of an invisible


hand. Some of the most prominent of them maintain that social reproduc-
tion must be a conscious undertaking by the people as a whole, effected
through democratically controlled primary and secondary education.2 In-
deed, it is said, preparing future citizens for participation in a deliberative
democracy by cultivating a democratic character ought to be the primary
aim of pre-collegiate formal education.3
What role can religious schools have in democratic education? American
philosophers of education have long had reservations about religious
schools. The grounds of those reservations, however, are not immediately
clear. I believe they are unclear in large part because theorists of democratic
education have not spelled out the requirements of a democratic character

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Religious Education and Democratic Character 55

with any real precision. We can ask what sorts of education help instill a
democratic character, and we can see whether the reservations these theor-
ists have about religious schools are well founded, only if we first know what
a democratic character is.
Since deliberative democrats think citizens should govern themselves on
the basis of public deliberation, let us say that a deliberatively democratic
character consists of the traits citizens need if they are to govern themselves
in this way. In the first section of this chapter, I ask what reasons there are
for including one or another trait in a deliberatively democratic character.
In the second section, I specify some of the traits of such a character.
The second section draws on the rational reconstruction of a version of
deliberative democracy that I call strong deliberativism. At the heart of
strong deliberativism is a disposition to comply with requirements of what
is sometimes called public reason the disposition to rely on and the
readiness to offer others reasons that are public or accessible. The need
for citizens to develop those dispositions imposes clear demands on demo-
cratic education. In the third section, I show how these demands are con-
nected to the reservations that some deliberative democrats have about
religious schools. By drawing this connection, I show that the idea of public
reason central to so much recent work on religion and democracy is also
central to discussions on whether religious schools can contribute to demo-
cratic education. As we will see in the third section, some of the reservations
deliberative democrats have about religious schools depend on the claim
that these schools encourage attitudes toward ones own moral views that
are incompatible with meeting the requirements of public reason.
In the fourth section, I suggest that some of these attitudes can in fact be
elements of a deliberatively democratic character. This suggestion depends
on the claim, which I also defend in that section, that the concepts of pub-
licity and accessibility of reasons do not do any independent philosophical
Copyright 2010. UBC Press. All rights reserved.

work in specifying the traits of a deliberatively democratic character. This


claim has two important upshots. One is that the most plausible versions
of deliberative democracy are not those that give an essential role to the
notion of public reasons. The other is that the importance of the notions of
publicity and accessibility, which seemed to be so central to the goals of
democratic education, is really heuristic.

Deliberatively Democratic Character


A deliberatively democratic character consists of the skills and habits citizens
need if they are to govern themselves on the basis of public deliberation.
But such a character does not consist of the skills and habits each and every
person must have if the society of which she is a part is to govern itself on
the basis of public deliberation at all. Rather, it consists of the skills and

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56 Paul Weithman

habits that make someone a good citizen of a society that governs itself on
the basis of public deliberation that is well conducted.
Because the claim that one or another trait is part of a democratic character
is a claim about good citizenship and well-conducted deliberation, its valida-
tion depends on arguments drawn from moral and political philosophy.
Some of these arguments concern the question of which traits a citizen must
have if she is to entertain the deliberative contributions of others with the
attitude appropriate to deliberation among equals. Others concern the ques-
tion of how someone must be able to view her own deepest moral and
political convictions if she is to deliberate with someone who disagrees with
her. These are questions about the psychology of citizenship, but they are
psychological questions with a normative twist since they concern the habits,
skills, and dispositions that it is good for citizens to have and the features
of deliberation that make it well conducted.
There is no reason to think, before we attempt to answer these questions,
that there is any one set of qualities that constitutes a deliberatively demo-
cratic character. It could be that possession of that character is disjunctive.
Perhaps to possess it is to possess one of a number of different sets of traits.
It could even be that these sets are distinguished by the inclusion of traits
that are logically or psychologically incompatible. It could be, for example,
that a good citizen of a deliberative democracy is either an uncompromising
critic of every last injustice or a conciliatory pragmatist who works for mar-
ginal improvements. Indeed, it could be that well-conducted deliberation
depends on the active participation of citizens who complement one another
by bringing different skills and habits to public debate.
Possession of a deliberatively democratic character could be disjunctive
without the disjuncts being disjoint. Perhaps some traits are common to all
instances of a deliberatively democratic character. But once we admit the
possibilities that the list of these traits is not exhaustive and that delibera-
Copyright 2010. UBC Press. All rights reserved.

tively democratic character is to be understood disjunctively, the question


of whether religious schools can effectively foster such a character becomes
a good deal more complicated than it seemed when we thought that such
a character consisted of just a few important traits. It could be that religious
schools, or some religious schools, are particularly effective at fostering one
kind of deliberatively democratic character at fostering one set of traits
but not very effective at fostering another. And it could be that the effective-
ness of religious schools at fostering that kind of character is overlooked
because the most salient traits of that kind of character are so common, or
are so pronounced in some quarters, that they are simply taken for granted.
Or it could be that, under current political conditions, the kind of character
religious schools are good at fostering is thought to show itself most clearly
in contributions to public debates that some deem uncivil and that the

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Religious Education and Democratic Character 57

incivility overshadows the less obvious benefits a society enjoys when some
of its citizens have such a character.
I will return to these possibilities in the fourth section. My most basic
point for the moment is simply this: though much writing in the philosophy
of democratic education seems to assume otherwise, it is clear that an ac-
count of a deliberatively democratic character and hence an account of
the goals of a democratic education presupposes a good deal of philosoph-
ical work on citizenship and deliberation. Only after that work has been
done can we answer the question of whether religious schools are effective
at instilling a deliberatively democratic character. Although I do not do that
work here, I have tried to do some of it elsewhere. I will build on that work
in what follows.

Strong Deliberativism and Three Requirements


Deliberative democrats sometimes claim that someone can be a good par-
ticipant in public deliberations only if he has or is willing and able to adopt
certain critical attitudes toward, or attitudes of detachment from, the opin-
ions, values, and preferences he supports in those deliberations. Those at-
titudes are said to be elements of a deliberatively democratic character. An
education that effectively fosters such a character will be an education that
effectively fosters those attitudes toward ones own political views.
We can best evaluate claims about the attitudes a good citizen has toward
her views, I believe, by asking how she holds those views by which I mean
asking about how she is disposed to defend and to change them. Elsewhere
I have drawn on some of the conditions that deliberative democrats put on
public deliberation to spell out an answer to this question.4 Among those
conditions are what I call the legitimacy condition, the free and equal
condition, and the common interest condition. According to the legit-
imacy condition, the fact that a political outcome results from well-conducted
Copyright 2010. UBC Press. All rights reserved.

public deliberation contributes to its legitimacy. The free and equal condi-
tion says that citizens should take part in public deliberation as free and
equal. The common interest condition says that public deliberation should
be oriented toward the common interest. What I call strong deliberativism
moves from these conditions to a set of demands on well-conducted delib-
eration. These demands are expressed by demands on the sorts of reasons
to which good citizens should be responsive when they take part in public
deliberation. It is because strong deliberativism imposes these demands that
it has implications for the traits of a deliberatively democratic character.
I have argued that, according to strong deliberativism, a deliberatively
democratic character includes the disposition to comply with the following
three requirements. For reasons I have given elsewhere, the requirements
are disjunctively specified.5

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58 Paul Weithman

Requirement 1

(1) Citizens should support only political outcomes for which they are will-
ing to offer reasons that they think are public in due course, that they would
think on critical reflection are sufficient, and that they would think on
critical reflection are regarded as sufficient by those to whom they are will-
ing to offer them.

or

(1) Citizens should support only political outcomes for which they are
willing to offer reasons that they think are public in due course, that are in
fact public, that they would think on critical reflection are sufficient, and
that they would think on critical reflection are regarded as sufficient by
those to whom they are willing to offer them.

Requirement 2

(2) Citizens should reject or modify their own view about what is to be done
when they are confronted with public reasons for an alternative that they
would regard on critical reflection as better than the public reasons they
would identify in due course for the outcome they favour.

or

(2) Citizens should reject or modify their own view about what is to be
done when they are confronted with reasons they think are public for an
alternative that they would regard on critical reflection as better than the
reasons they think are public that they would identify in due course for the
outcome they favour.
Copyright 2010. UBC Press. All rights reserved.

Requirement 3

(3) Citizens should disagree respectfully with those participants in public


deliberation who comply with (1) or (1) and (2) or (2), who accept the
demands of the free and equal and the common interest conditions, and
whose reasons for alternative outcomes they do not find persuasive.

or

(3) Citizens should work respectfully for a mutually acceptable compromise


with those participants in public deliberation who comply with (1) or (1)
and (2) or (2), who accept the requirements of the free and equal and the
common interest conditions, and whose reasons for alternative outcomes
to those they previously endorsed they do not find persuasive.

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Religious Education and Democratic Character 59

According to the strong deliberative position, those who participate well


in public deliberation have the settled dispositions to comply with (1) or (1),
(2) or (2), and (3) or (3). They are therefore disposed to offer public reasons
for their political positions even if they also have religious reasons for them.
They are disposed to change their views if others have what they think are
stronger public reasons for a view they initially opposed, however strong
they think their religious reasons are. They are therefore disposed to comply
with one view of the demands of public reason. In putting these dispositions
at the heart of a deliberatively democratic character, strong deliberativists
follow Rawls, who says that a central element of deliberative democracy is
citizens readiness to abide by the idea of public reason (2001b, 139).
How does identifying these dispositions help us identify the attitudes
citizens should have toward their own political views? Note first that strong
deliberativism does not require some of the attitudes that good citizenship
in a liberal democracy is sometimes said to require. The disposition to comply
with (2) and (2), for example, neither expresses nor entails a requirement
of skepticism toward ones views. Nor does the disposition to comply with
either one seem to entail a sense of critical detachment from ones political
views, an ironic detachment from them, or a conscious openness to the pos-
sibility that those views may be wrong. These attitudes may facilitate compli-
ance with (2) and (2). If they do, then democratic educators will be tempted
to encourage them. But whether they do is an empirical question.
What compliance with (2) and (2) does demand is responsiveness to the
public reasons others offer for alternative positions. Clearly, it can be true
of someone that he would change his views in response to the arguments
of others even if he does not hold his own views skeptically or ironically.
Educators can try to encourage compliance with (2) and (2) without trying
to encourage skepticism or irony. Of course, skepticism should not be con-
fused with fallibilism. A deliberatively democratic character may include the
Copyright 2010. UBC Press. All rights reserved.

latter without including the former. It may be that possession of a delibera-


tively democratic character requires fallibilism about ones political views.
In that case, we might take (2) and (2) as attempts to spell out what fallibil-
ism requires.6
Deliberative democrats often imply that citizens who have the right at-
titudes toward their own political views support those views autonomously
and that an education aimed at fostering those attitudes is education for
autonomy.7 I believe that strong deliberativists would say that someone who
is disposed to comply with (1) or (1), (2) or (2), and (3) or (3) is appropri-
ately described as supporting her views autonomously. Why?
There are many interpretations of autonomy that enjoy currency in the
philosophical literature (Christman and Anderson 2005). Some of them give
a central place to the agents critical reflection on her own views. The answer

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60 Paul Weithman

to why someone who is disposed to comply with (1) or (1), (2) or (2), and
(3) or (3) supports her views autonomously might therefore seem to lie in
the critical reflection clauses in (1) and (1), (2) and (2). For someone who
complies with the requirements of strong deliberativism publicly supports
only political outcomes for which she can offer reasons that she would think
on critical reflection are sufficient; she alters her views in response to public
reasons offered by others that she would think on critical reflection are better
than her public reasons. Her support for political views therefore tracks the
results she would reach after critical reflection on the quality of her reasons
for her views and on the quality of the reasons others offer her for their
views. Supporting views only if one would support them given such critical
reflection might be thought to be sufficient for supporting ones views au-
tonomously. The person who complies with (1) or (1) and (2) or (2) might
be thought to support her views autonomously because she is thought to
satisfy this condition.
But the condition that does the work in this line of thought cannot be a
sufficient condition for autonomy. For one thing, much more would need
to be said than theorists of democratic education typically say about just
what critical reflection is before we could conclude anything about the
condition. For another, it is hard to see how someone whose support for her
political views just happens to track the conclusions she would reach after
critical reflection can be described as supporting her views autonomously
without regard to why or how her support actually tracks those results. Yet
this is what someone who thinks the condition is sufficient for autonomy
is committed to.
Someone who supports her views autonomously has a morally significant
kind of freedom. We can begin to see why someone who is disposed to
comply with (1) or (1), (2) or (2), and (3) or (3) supports her views autono-
mously by seeing in what way such a person is free.
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Because someone who is disposed to comply with (1) or (1) supports only
the political outcomes for which she is willing to offer public reasons in due
course that she would regard on critical reflection as sufficient, she supports
only the outcomes she would support if she arrived at her political views on
the basis of the public reasons she has or comes to have. Furthermore, if she
is disposed to comply with (2) or (2), then she is ready to change her views
if she is presented with what she would take to be stronger public reasons
for an alternative position, regardless of the strength of her non-public
reasons. So such a person supports only those outcomes she would support
if she did not allow the force of what strong deliberativists would call non-
public reasons to determine her views, and she revises her views as if she
were not determined by the force of such reasons.
Someone whose political views track the political views she would reach
if she did not allow her views to be determined by non-public reasons is

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Religious Education and Democratic Character 61

not free just on that account. But now consider someone who is disposed
to comply with (1) or (1), (2) or (2), and (3) or (3) because she thinks that
public reasons have an authoritative role in public debate. This person does
not simply support and revise her views as if she were not determined by
the force of her non-public reasons. She also recognizes that she should
not allow the force of these reasons to determine her views because she
acknowledges the authority of public reasons and acts on that acknowledg-
ment. In this description of the agent, what she does not allow, and why
she does not allow it, do significant work. I believe strong deliberativists
think that a person who does not allow the force of her non-public reasons
to determine her political views thereby participates in public deliberation
freely. I believe they think that the kind of freedom she exercises can be
called autonomy.
Let me grant that someone who does not allow her support and revision
of her political views to be determined by the force of her non-public reasons
thereby exercises a kind of freedom. We can see why the strong deliberativist
might think that this kind of freedom is autonomy by resorting to an image
on which some strong deliberativists rely. Some strong deliberativists think
that a person who acknowledges the authority of public reasons acknow-
ledges the authority of a certain point of view that she can take of her
political opinions the point of view that Stephen Macedo calls a shared
political point of view (1995, 468ff., 488).8 This is the point of view that
someone adopts by asking herself which outcomes she would or could sup-
port consistent with the demands of her public identity as a citizen. To ac-
knowledge the authority of this point of view is to acknowledge the authority
of public reasons because they are the reasons that would move someone
in this point of view. They are reasons that are authoritative for citizens
considered as such.9
On one interpretation of autonomy, people hold their views autonomously
Copyright 2010. UBC Press. All rights reserved.

when they hold views that are determined by their true selves rather than
by external influences. Extending this notion of autonomy, strong delib-
erativists may think that someone is politically autonomous when her
support and revision of her political views is determined by her true public
self by her public identity. Strong deliberativists may also think that
someone who acknowledges the authority of the shared political point of
view, and who supports and revises her political views accordingly, is
thereby being true or faithful to her public identity. She is, they may think,
allowing her public identity rather than her non-public reasons to determine
her political views. If so, and if they accept the description of political au-
tonomy given above, then they will conclude that such a person is politically
autonomous.
According to the strong deliberativist, then, a deliberatively democratic
character includes the settled disposition to comply with (1) or (1), (2) or

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62 Paul Weithman

(2), and (3) or (3). An effective democratic education effectively encourages


students to develop those dispositions. So an education for strong deliberativ-
ism will teach students to survey their political positions and the reasons
they have for them from what I have referred to as a political viewpoint.
Strong deliberativists would describe such an education as an education for
autonomy. Such an education may encourage students to reflect not only
on the reasons they have for their positions but also on what it is to be a
citizen who holds and defends political views appropriately in public delib-
eration. An education that effectively encourages autonomous dispositions
or attitudes toward ones own political views may thereby encourage a certain
way of conceiving oneself in ones public or political role. Hence, an educa-
tion that encourages students to hold their political views autonomously
may encourage them to think of themselves as publicly autonomous as well.
Encouraging students to think of themselves as publicly autonomous is
one of the ways in which strong deliberativists think that a deliberative
democracy reproduces itself. Just as citizens who learn to think of themselves
as rights holders learn to demand that their rights be respected, so too those
who learn to think of themselves as autonomous in the relevant sense learn
to demand that they be offered the right sorts of reasons in public debate.
It is only when succeeding generations of citizens learn to demand such
reasons that well-conducted deliberation can continue from one generation
to the next. So the widespread development of such a self-conception is not
a foreseen but an unintended consequence a spillover10 of democratic
education. Rather, deliberative democrats who are committed to conscious
social reproduction must be consciously committed to encouraging students
to think of themselves as politically autonomous.
My purpose in this section is not to evaluate the claims I have attributed
to the strong deliberativist. It is simply to lay them out in a brief but sys-
tematic way. Although the strong deliberative position as I have sketched it
Copyright 2010. UBC Press. All rights reserved.

is not, to my knowledge, explicitly defended by any deliberative democrats,


I believe that it could be supported by the exegesis of relevant texts and is
motivated by other positions to which many deliberative democrats are
committed. Of course, not all deliberative democrats would endorse strong
deliberativism. Some have a more permissive view of public deliberation
that does not require reliance on public reasons. But I believe that many
deliberative democrats would endorse strong deliberativism. And I believe
that it is endorsement of or commitment to the strong deliberative position,
with its associated claims about autonomy, that explains the reservations
some deliberative theorists seem to have about religious schools.

Religious Schools and the Three Requirements


Now that we have looked more closely into what a deliberatively democratic
character includes, we can see why deliberative democrats may doubt that

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Religious Education and Democratic Character 63

religious schools can effectively foster such a character. The reason for this
doubt is the underlying doubt that religious schools can or will effectively
foster the dispositions to comply with (1) or (1), (2) or (2), and (3) or (3).
Why might someone have this underlying doubt?
The doubt is nourished by the thought that religious schools encourage
attitudes toward what students are taught is the moral truth including
what students are taught to believe is the truth about political outcomes
that are incompatible with a deliberatively democratic character. Religious
schools are thought to teach that the content of morality is given by scrip-
ture, divine command, natural law, or religious authority. And they are
thought to teach that God wishes us to follow the dictates of morality in
politics and elsewhere. Strong deliberativism does not require skepticism or
irony. The worry about religious schools cannot be that they do not teach
students to be skeptical or ironic about their political commitments. Because
religious schools are thought to teach that the content of morality is given
or sanctioned by one or more authoritative religious sources, critics worry
that students views about the content of morality including their views
about what political outcomes ought to be will be sensitive only or primar-
ily to their views about what those sources expound. This, it may be said,
will show itself in students failure to develop dispositions to comply with
(1) or (1), (2) or (2), and (3) or (3). It will therefore show itself in their
failure to support their political views autonomously.
Citizens disposed to comply with (1) and (1) are willing to offer one
another public reasons or what they believe to be public reasons that they
think, on critical reflection, others would find sufficient. It may be claimed
that students from religious schools will not be taught to think critically
about how other citizens, especially those who are not religious, would re-
ceive their views. Or it may be said that although students in religious schools
learn that non-religious citizens will not regard their religious arguments as
Copyright 2010. UBC Press. All rights reserved.

sufficient to justify political outcomes, they will also be taught to explain


away others rejection of their arguments on the grounds that those who
disagree with them are sinful, unfaithful, or benighted. Either way, it may
be concluded that students in religious schools may not learn that the legit-
imacy of political outcomes depends on their being the result of deliberation
in which citizens are ready to offer public reasons for their views. Nor will
they be taught to offer one another such reasons. Therefore, the worry is
that religious schools may not effectively encourage the disposition to com-
ply with (1) or (1).
What of (2) and (2)? Why might deliberative democrats worry that reli-
gious schools will not effectively encourage the dispositions to comply with
them? Citizens disposed to comply with (2) and (2) reject or alter their
views if the public reasons they can identify for them seem less compelling
than the public reasons others offer for alternative outcomes. If students at

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64 Paul Weithman

religious schools think that authoritative religious sources provide the cor-
rect answers to political questions, then they may not think that the quality
of the public reasons they must offer for their views matters. What matters,
they think, is the quality of the religious reasons they have for their views
or the force of all their reasons for their views taken together. If they are also
taught that public deliberation and the arguments of others are unreliable
guides to the truth or are not necessarily reliable guides to the truth, and if
they are also taught that in public deliberation their responsibility is to sup-
port the truth as they see it, then they will not be disposed to change their
views in response to the public reasons offered by others.
But now suppose that students from religious schools are taught that they
should offer one another public reasons for views they may hold for religious
reasons. Even so, it may be thought that these students will be too convinced
of the views they think are correct to be properly attentive and responsive
to the public reasons offered by their political opponents. More specifically,
they may be too convinced of the truth of their own views to be moved by
the public reasons that would move them if they were to engage in the right
sort of critical reflection. Instead, they will see challenges to their views as
threats. They will treat public deliberation as an exercise in political apolo-
getics rather than as an exercise in reasoning and deciding together with
fellow citizens. So they will not be disposed to change their views even if
they are offered public reasons they would think on critical reflection are
better than the public reasons they can muster for their positions. Religious
schools may not effectively encourage the disposition to comply with (2)
and (2).
Finally, if students who attend religious schools are taught that they pos-
sess the truth about what various political outcomes should be in virtue of
their access to authoritative religious sources, then they may not learn respect
for those who disagree with them. Hence, religious schools may not effect-
Copyright 2010. UBC Press. All rights reserved.

ively encourage the disposition to comply with (3). If students are taught
that acting contrary to the moral and political truth invites punishment by
or alienation from God, then the costs of violating what they take to be the
dictates of authoritative religious sources will seem too high. Students thus
will not learn to compromise the truth as they see it in order to reach an
accommodation with others. Therefore, religious schools may not effectively
encourage the disposition to comply with (3) either.

In Defense of Religious Schools


What can be said to address these reservations about religious schools? I
want to explore two replies, the first of which depends on objections to the
strong deliberative position.

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Religious Education and Democratic Character 65

The Enhanced Importance of Mutual Translation


Deliberative democrats want public deliberation to serve a legitimating
function. According to what I called the legitimacy condition, the fact that
a political outcome results from well-conducted deliberation contributes to
its legitimacy. As the term well conducted suggests, public deliberation
must meet certain conditions if it is to serve that function. I am skeptical
that philosophers can provide necessary and sufficient conditions for the
concepts of accessibility and inaccessibility. I am skeptical that they can
pick out a class or classes of reasons that are inherently public. And I am
skeptical that they can defend the claim that such reasons play the essential
roles in public deliberation that they are assigned by (1) and (1), (2) and
(2), and (3) and (3). I have laid out my reservations elsewhere (see Weith-
man 2002).
I am also skeptical about the need for so strong a solution to the problem
that inaccessible reasons are said to pose. More precisely, I am skeptical of
the claim that public deliberation can serve its legitimating function only
if participants in public deliberation are prepared to offer one another, and
are responsive to, a class of reasons that is inherently public or accessible.
(1) and (1) both imply that citizens should be ready to offer reasons of the
same kind to all those with whom they are deliberating, regardless of their
interlocutors beliefs and the reasons their interlocutors would in fact find
persuasive. This implication is, I believe, too strong. Public deliberation can
be well-conducted and can serve its legitimating function even if participants
satisfy only conditions that are weaker than (1) and (1).
Proponents of the strong deliberative position are correct in claiming that
citizens must have certain dispositions or qualities of character if they are
to take part properly in well-conducted deliberation. Citizens who take part
in public deliberation should be willing to offer considerations in favour of
their positions that will enable others to see which reasons they have for
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them. They must be appropriately responsive to the reactions and replies


these reasons evoke. They must be appropriately responsive to the considera-
tions put forward by others in favour of their positions. And they must respect
other participants who show they are willing to comply with the require-
ments of well-conducted deliberation. These dispositions are ingredients of
a deliberatively democratic character. If we are to be deliberative democrats,
then fostering these dispositions should be among the aims of democratic
education. But even if we are to be deliberative democrats, we should not
endorse the strong deliberative position. I believe that proponents of the
strong deliberative position are mistaken in claiming that citizens must be
prepared to offer and must be responsive to reasons that can be identified
as inherently public or accessible.

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66 Paul Weithman

If this is correct, then the right conception of public deliberation is a much


looser one than that which is sometimes associated with the term delibera-
tive democracy. I cannot defend an alternative conception of public delib-
eration here.11 Instead, I want to say something about what future citizens
need to be taught over the course of a democratic education if they are to
acquire the skills and habits they need to participate in well-conducted public
deliberation.
I have not disputed the claim that public deliberation is a process of pol-
itical decision making characterized by the exchange and evaluation of
reasons for political outcomes. I have merely argued for loosening what
counts as a reason. Because public deliberation is characterized by the ex-
change and evaluation of reasons, two of the lessons that students will have
to learn two of the most elementary lessons, to be sure are that the right-
ness of their political positions may not be as evident to others as it seems
to them and that they must guard against the natural human tendency to
believe in and defend their positions simply because those positions are
theirs.12 Students will also have to learn to identify considerations that tell
in favour of their position. This requires that they learn rules of evidence
and various forms of rational argument, including deductive, statistical, and
probabilistic reasoning. They will have to learn how to convey those con-
siderations to others, discursively and otherwise.
If students are to learn to reason together with others including those
who disagree with them then they must acquire some awareness of how
their political opponents will receive their defences of the political outcomes
they favour. This entails acquiring some awareness of how their political
opponents would react to the possibility that their arguments will carry the
day and that the government will adopt the policy they favour for the reasons
they offer. To acquire this awareness, it will be helpful if they learn to imagine
what it would be like to be forced by authorities to do something for reasons
Copyright 2010. UBC Press. All rights reserved.

that strike them as wrong on empirical grounds (as a contentious economic


argument might), for moral reasons that strike them as reasonable but wrong,
and for putative moral reasons the force of which utterly escapes them.
They will also have to learn how to interpret and respond to the contribu-
tions of others, including those who disagree with them. This will require
them to learn to understand, evaluate, and respond to arguments and to see
the point of non-argumentative contributions to public deliberation.13 It
will require them to learn how to criticize the contributions of others and
when to change their own views. It may also require that they acquire a
great deal of cultural background knowledge. For one thing, it will be helpful
to understand the metaphors and images, including the religious ones, in
which others couch their contributions to public deliberation. For another,
it will be useful for citizens to understand which differences of wealth, power,
and social location, and which individual and collective histories, might

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Religious Education and Democratic Character 67

motivate others contributions to public deliberation. Some peoples contri-


butions to debate may be angry, strident, disaffected, or defensive. Public
deliberation is facilitated when citizens know which groups have endured
histories of oppression or disadvantage, when they know which groups have
enjoyed privilege, and when they know the extent to which the histories of
oppression and privilege are contested. This is all part of the historical and
cultural background that students need to be taught.
Even though I have followed other theorists of civic education in assum-
ing that future citizens acquire the knowledge and skills needed for public
deliberation in school, there are significant and obvious differences between
political discussion in a classroom setting and public deliberation among
citizens. The one that concerns me for the moment is that political discus-
sion in a classroom setting is conducted face to face among students who
have at least some acquaintance with one another and who can expect to
share a classroom in the future. Whatever the forums of political delibera-
tion among citizens and this itself is a contested matter political delibera-
tion is not like that. When citizens write letters to newspapers or to political
authorities, and when they speak at meetings, they may be exchanging
reasons with others whom they do not know. Citizens need to know how
to engage in public deliberation. That is, they need to learn how to exchange
reasons with the public of their society as such.
What I want to suggest is that the various skills, habits, and qualities of
character that students need to be taught in the course of a democratic
education can all be specified without essential reference to a class of reasons
that are inherently public or accessible. I therefore propose an account of a
deliberatively democratic character that departs in a crucial respect from
what I have referred to as the strong deliberative position. An adequate
defence of the alternative would have to take up the problem posed by
putatively inaccessible reasons. Let me propose two reasons for thinking
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that the problem might not be as acute as it is sometimes said to be, reasons
from which I will ultimately draw lessons about the contribution that reli-
gious schools can make to democratic education.
First, suppose that the arguments of some of those who rely crucially on
non-public reasons can be translated by their recipients into arguments
that rely only on considerations that the hearers regard as good ones. And
suppose that those who offer such arguments have good reasons to think
that their arguments can be so translated. Then it is not immediately obvious
why those who offer such arguments must be ready to appeal only to reasons
drawn from some privileged class. If, for example, the religious arguments
of Martin Luther King could be translated into non-religious arguments by
those who heard him, and if he had good reason to think that they could
be translated into non-religious arguments, then it is not immediately ob-
vious why he should have been ready to offer other reasons in addition.

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68 Paul Weithman

Translation of this kind requires considerable background knowledge about


others religious and moral views of the good life. But such translation is a
common enough phenomenon. It can go some way toward mitigating the
problems that are said to be posed by citizens ineliminable reliance on their
conceptions of the good in political argument. If such mutual translation
is a part of public deliberation, then the ability and willingness to translate
are important elements of a deliberatively democratic character.
Second, even when citizens cannot translate one anothers contributions
to public deliberation with complete fidelity, the problem posed by infelici-
tous or partial translation need not be so great, especially if citizens are
willing to work for greater fidelity in the course of ongoing discussion. I
have argued elsewhere that public deliberation is most plausibly understood
as demanding that citizens be ready to critically reflect on their own political
arguments in medias res (Weithman 2005). And I have suggested that this
critical reflection can be prompted by the contributions and criticisms of
others. Citizens uncover and produce public reasons by critically reflecting
in the midst of public deliberation.
Sometimes these criticisms may be wholesale rejections of arguments or
expressions of incomprehension. But criticisms are often most productive
when they reflect partial comprehension. The most useful critic might be
the one who says, for example, that she has some idea what is meant by
saying that abortion should be illegal because fetuses are ensouled at the
moment of conception or that physician-assisted suicide should be illegal
because human beings are Gods property made to last during his ... Pleas-
ure (Locke 1988) but who also can explain why she needs to hear more.
The possibilities of mutual translation and partial comprehension raise
interesting questions for the contents of a deliberatively democratic char-
acter.14 Perhaps instead of (1) or (1), (2) or (2), and (3) or (3), such a char-
acter includes the readiness to try translating the arguments of others as
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sympathetically as possible. If so, then the fact that it does has important
educational implications. If citizens are to be ready to translate putatively
non-public reasons, then students who are future citizens will have to
be taught how to translate. If some of the non-public reasons they must be
taught to translate are religious, then students will have to be taught some-
thing about the religious traditions from which those reasons are likely to
be drawn. Religious schools can play an important role in this enterprise.
By suggesting that the elements of a deliberatively democratic character
can be specified without essential reference to inherently public or access-
ible reasons, I do not mean to imply that the concepts of publicity and
accessibility do not have a place in giving students a democratic education.
What I do mean to claim is that these concepts are not the ones that do the
philosophical work in specifying the goal of such an education. Hence,
when we try to specify the traits of a deliberatively democratic character,

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Religious Education and Democratic Character 69

we may speak of a disposition to offer and respond to public reasons or to


reasons that are accessible to others if we like. But I suggest that we under-
stand these ways of speaking as convenient shorthand, the content of which
is given by the disposition to offer considerations the reason-giving force
of which others can comprehend or translate into such considerations. In
the practice of democratic education, the concepts of publicity and access-
ibility play a merely heuristic role.
A comparison may help make my suggestion plausible. When we say that
students must be taught to imagine how their arguments will be received,
it might prove convenient to say that they must be taught to imagine
themselves in their interlocutors shoes. And when we try to teach skills of
imaginative and sympathetic identification and of role reversal, we may ask
students how they would feel if they were in an opponents place. It is dif-
ficult to say with any precision just what it is that students are being asked
to imagine. Are they being asked to imagine they are someone else? Or that
they remain metaphysically the same person but with another persons
preferences and history? And, if the latter, how are they to know how they
given their own preferences and history would feel if they had someone
elses preferences instead or additionally? Yet, for all these difficulties, the
concept of asking people to imagine themselves in someone elses place can
be of pedagogical use provided that it is not pressed too hard. The same, I
believe, is true of the concept of accessible or public reasons.

Faith in the Underpinnings of Deliberative Democracy


Both (3) and (3) require citizens to respect other participants in public de-
liberation who comply with the requirements of the deliberative position
and of the free and equal and the common interest conditions. Which atti-
tudes should the good citizen have toward these conditions? Which attitudes
toward these conditions should a democratic education try to instill?
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The claim that good citizens of a liberal democracy must be skeptical or


open to the possibility that their moral and political views are wrong has a
long and distinguished pedigree.15 It finds its most famous expression in
Learned Hands well-known remark that the spirit of liberty is the spirit
which is not too sure that it is right (Gunther 1994, 549). There are echoes
of it in John Dewey and Richard Rorty. Frank Michelman, a prominent
defender of deliberative democracy, implies that citizens of a deliberative
democracy should have an attitude of openness to ethical evolution through
political engagement (1989, 448). The views of Hand, Dewey, Rorty, and
Michelman might be thought to imply that citizens should be skeptical
about the demands of the free and equal and the common interest condi-
tions or should be open to the possibility that those conditions are wrong.
As I pointed out in the second section, strong deliberativism does not
require skepticism or irony about ones views of political outcomes. It is

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70 Paul Weithman

therefore hard to see why it should be thought to require skepticism about


or ironic detachment from the fundamental commitments of deliberative
democracy itself, including the free and equal and the common interest
conditions. Indeed, I suggest that citizens may have very different attitudes
toward these conditions, attitudes that find expression in their responses to
those whose participation in public deliberation shows that they think these
conditions are not binding.
When we ask which qualities make citizens good participants in well-
conducted deliberation, we are not asking about which qualities would make
them good participants in ideal deliberation. We are asking about which
traits make them good participants in well-conducted deliberation in the
world that we citizens of liberal democracies early in the twenty-first cen-
tury actually inhabit. Our world is unfortunately one in which some people
who participate in public deliberation reject the free and equal and the com-
mon interest conditions. Sometimes they propose policies that would deny
freedom and equality to some or that would undermine the conditions for
regulating deliberation by the demands of the common interest. Sometimes
they betray their denial of these assumptions by their political conduct. So
citizens in the actual world will encounter prejudice, bigotry, and blatantly
self-interested political behaviour.
It is important that some citizens at least respond with indignation and
outrage to proposals that would deny citizens the rights and opportunities
they need to participate in public deliberation as free equals. Their responses
should not simply reflect the view that citizens who put forward these pro-
posals have made a mistake or that their reasoning has lapsed. Rather, their
responses should reflect the view that proposals to institutionalize the in-
equality of citizens, for example, ought never to be entertained in public
deliberation and that someone who proposes this has crossed a line citizens
simply should not cross. The citizens I have in mind should be able to say
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what is wrong with a proposal that denies the equality of citizens. And they
should be ready to say what is wrong with the proposal. But the tenor and
emotional coloration of their responses should also make it clear that they
think such proposals are beyond the pale.
These reflections suggest that a deliberatively democratic character includes
or can include certain propositional-cum-moral attitudes toward the contents
of the free and equal condition and the common interest condition. They
suggest that a deliberatively democratic character includes or can include
attitudes of deep conviction about the truth of those conditions and that
these cognitive attitudes are tied to the dispositions to powerful emotional
responses when the conditions are disregarded.16 Perhaps a deliberatively
democratic character includes or can include a faith in the moral underpin-
nings of deliberative democracy that, like Barbara Jordans faith in the
constitution, is whole ... complete ... [and] total.17

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Religious Education and Democratic Character 71

I used the phrase includes or can include in the previous paragraph


because of a possibility that I raised earlier that a deliberatively democratic
character is disjunctive. The possibility that such a character is disjunctive
opens the possibility that there is no one set of attitudes toward the funda-
mental commitments of deliberative democracy that a deliberatively demo-
cratic character includes. Perhaps not all citizens need to have the sort of
deep faith in those commitments I suggested, and perhaps not all need to
be prepared to respond in the ways I associated with those attitudes. But I
persist in thinking that some may and indeed should. Responses of this kind
fall within the range of appropriate responses, in part because they may help
the person who disregards the free and equal and the common interest
conditions to appreciate the gravity of his violation.
What role can religious schools play in instilling a deliberatively democratic
character so understood? Recall what grounded the worry that religious
schools are not effective at instilling a deliberatively democratic character.
That worry was founded on the view that religious schools instill attitudes
toward moral truths that are incompatible with the requirements of delib-
erative democracy. Once we see that a deliberatively democratic character
can include an uncompromising attitude toward certain moral truths, the
question of whether religious schools can effectively instill a deliberatively
democratic character becomes more complicated than it originally seemed.
Religious schools might be quite effective at instilling such an attitude toward
the moral views that underpin deliberative democracy. They might, for
example, be effective at teaching uncompromising attitudes toward the
claims that human beings are moral equals,18 that moral equality requires
political equality, and that politics should try to promote the common in-
terests of free and equal citizens. Whether religious schools do in fact en-
courage the development of some elements of a deliberatively democratic
character by encouraging uncompromising belief in the underpinnings of
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deliberative democracy or by encouraging students to place a faith in moral


and political equality that is whole, complete, and total is, of course,
an empirical question.

Acknowledgments
This chapter previously appeared in Religious Voices in Public Places, edited by Nigel Biggar
and Linda Hogan (2009) and is reprinted by permission of Oxford University Press. It was
originally prepared for a conference called Deliberative Democracy: Theory and Practice,
held at the University of Montreal, and for a conference called Religious Voices in Public
Places, sponsored by the Institute for the Advanced Study of Religion, Ethics, and Public
Life and held at the University of Leeds. I am grateful to Phil Quinn for helpful comments
on an earlier draft.

Notes
1 There are many versions of deliberative democracy on offer. According to some, delibera-
tion is to be conducted largely by political elites. Ordinary citizens govern themselves on

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72 Paul Weithman

the basis of deliberation by informing themselves about public affairs and by making sure
that elites reach political decisions by deliberation rather than bargaining. According to
more populist versions of deliberative democracy, ordinary citizens are to take an active
part in public deliberation and decision making. Populist versions of deliberative democracy
are, I believe, the most interesting versions of the theory. It is with these versions of delib-
erative democracy that I am concerned in this chapter.
2 See Gutmann (1997, 39ff., 45, 287ff.). For an extended defence of what is, in effect, the
invisible hand view, see McConnell (2002); for her reply, see Gutmann, Can Publicly
Funded Schools Legitimately Teach Values in a Constitutional Democracy? in NOMOS 43:
Moral and Political Education (New York: New York University Press, 2002).
3 Gutmann (1999, 116, 127); the phrase democratic character is used on page 127.
4 These requirements are developed and defended in the companion piece to this chapter,
Weithman (2005).
5 See Weithman (2005).
6 I am grateful to Melissa Williams for helpful discussion on this point.
7 For the claim that democratic education should promote autonomy, see Levinson (1999);
for the claim that it should facilitate autonomy, see Brighouse (2000). It is important to
distinguish defending education for autonomy on liberal grounds and defending it on
deliberative democratic grounds. Liberal defences of autonomy and education for autonomy
begin with the premise that autonomy is an essential ingredient of, or a necessary condition
for, a well-lived human life. These arguments add that education should encourage or en-
able students eventually to lead good lives. They conclude that education should promote
or facilitate autonomy. Deliberative democratic arguments begin not with claims about the
good life but with claims about well-conducted deliberation and the need for citizens to
hold their beliefs, or some of their beliefs, autonomously if they are to take part in it. They
add that education should equip students eventually to be good citizens. They conclude
that education should teach students to hold their views, or some of their views, autono-
mously. The distinction between these two lines of argument matters: those who think
that autonomy is part of or a condition for a good life use the term autonomy to refer to
a different ideal of character than those who use it to refer to traits normally necessary for
participation in public deliberation.
8 The questions of why public reasons would be compelling to someone who adopts this
point of view and of why those reasons have authority are vital. Unfortunately, I cannot
pursue them here.
9 Why these reasons are authoritative for citizens as such is an important question. So, too,
is the question of whether autonomy requires that citizens understand why those reasons
are authoritative. Unfortunately, I cannot go into these matters here. I take them up in
Weithman (2002, Chapter 7).
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10 To my knowledge, the first use of the spillover metaphor to describe such consequences
is in Macedo (1995, 557, 574).
11 I would argue that it is one according to which citizens, speaking as such, can contribute
to well-conducted public deliberation by offering a range of reasons, stories and narratives,
artistic contributions, political and social criticism, as well as discursive argument. The
challenge facing anyone who defends this conception of deliberation is showing that such
contributions have sufficient cognitive content to advance a process that can be called
deliberation or collective reasoning.
12 I take it that the latter lesson is or perhaps is entailed by what theorists of democratic
education have in mind when they use the metaphor of attaining distance from ones
own views; see Gutmann (1999, 77).
13 It might be argued that this educational goal can be realized only if students are part of
more diverse student bodies than are typical at religious schools. I do not deny that being
part of a diverse student body is educationally valuable. I do believe it important, however,
to press two questions about this value. One is whether the value is sufficient to override
other values that can be realized only if a school is religiously homogeneous. The other is
whether, even if it is sufficient, it ought to override these competing values at every stage
of education. In particular, I think it important to ask about which educational conditions

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Religious Education and Democratic Character 73

are conducive to the production of what I call secure believers. Such religious believers
accept the defeasible presumption that the religious and ethical diversity typical of con-
temporary liberal democracies is neither regrettable nor threatening, and therefore they do
not feel embattled. Perhaps the development of such security requires an insulated environ-
ment early in life. Unfortunately, I cannot pursue this matter here. For a discussion of re-
ligious embattlement, with interesting empirical findings, see Smith (1999).
14 Interestingly, Rawls seems to deny both of these possibilities: Citizens realize that they
cannot reach agreement or even approach mutual understanding on the basis of their irrec-
oncilable comprehensive doctrines (1999, 129; emphasis added).
15 See the nuanced remarks about liberalism and skepticism in Shklar (1989, 25).
16 One of the most striking things about the literature on democratic education and, for
that matter, about the large bodies of literature that have grown up in recent years on
democratic character and civic virtue is how little explicit discussion there is of the emo-
tional life. This is a surprising lacuna in the literature on democratic character and civic
virtue since the virtues have traditionally been understood to regulate passions such as
anger, cupidity, and the sense of honour and affront. It is an even more surprising omission
from the literature on democratic education since shaping children and adolescents into
mature adults is in large part a shaping of their emotional lives.
17 See the epigraph at the opening of this chapter.
18 For an interesting exploration of the view that the moral equality of humanity is an irre-
ducibly religious view, see Waldron (2002a).
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Part 2
Deliberative Democracy,
Constitutions, and the Boundaries
of Deliberation
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4
Open versus Closed Constitutional
Negotiation
Simone Chambers

A perennial question of constitutional negotiation is this: When are closed


or even secret negotiations among elites appropriate, and when should
debate be open and inclusive? Canadas own experience in constitutional
negotiation appears to have swung from one extreme to the other. One of
the most striking differences between the Meech Lake and Charlottetown
rounds in the Canadian constitutional saga was the move from closed-door
elite negotiation to open popular consultation. Critics of Meech Lake never
tired of pointing out that the process lacked transparency, excluded the
public, and, in doing so, severely undermined the legitimacy of the final
product. In response to his critics, and when failure of the accord was evident,
Prime Minister Brian Mulroney promised, Next time Ill consult and Ill
consult and Ill consult and Ill wear the Canadian public out. I will not leave
one voice unheard (quoted in Bothwell 1995, 217). Consequently, the next
round of Canadian constitutional negotiations included many forums for
popular consultation, ending in an inclusive, fully public debate in the form
of a referendum campaign. To be sure, elites met behind closed doors and
Copyright 2010. UBC Press. All rights reserved.

hammered out much of the final document in camera. Nevertheless, by 1992


there was a new spirit of constitution making that stressed inclusion, dem-
ocracy, and above all publicity. Consensus, transparency, and ownership
became central to the process.
Moving constitutional negotiations out of smoke-filled back rooms has
its risks, however. Many skeptics of publicity might say that the open and
inclusive nature of the Charlottetown round made agreement impossible
(Ajzenstat 1994, 112-25). Not only does it become impossible to please all
parties, but also a fully public debate is usually shallow, pandering, and
easily hijacked by divisive passions and clever orators. Referendum cam-
paigns are often unpromising contexts in which to deliberate about consti-
tutional issues with the depth and seriousness they require (Lupia and
Johnston 2001).

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78 Simone Chambers

In evaluating the process initiated in the Charlottetown round of consti-


tutional negotiations, two opposing views emerge with regard to the salutary
or non-salutary effect of publicity on constitutional debate. In the first view,
constitutional debate benefits from moving into wide public forums because
doing so ensures that all views are heard and that participants are account-
able to the full range of interests and values in the polity. Furthermore, only
through publicity do citizens come to have a sense of ownership of a con-
stitution. Thus, public participation enhances legitimacy and stability. Op-
posed to this is the view that high-quality constitutional debate can take
place only when shielded from the public and the glare of publicity. Although
the public should perhaps take part in ratification at some level, substantive
debate needs protection from publicity. In this view, too much publicity
jeopardizes the quality of debate and makes agreement almost impossible.
In this chapter, I try to sort out some of the theoretical issues behind these
differing assessments of the effect of publicity on constitutional debate.
Successful constitutional negotiation will have to find some happy balance
between closed and open debate; a clearer idea of the salutary and negative
effects of publicity might be helpful in finding that balance. In assessing
publicitys effect on deliberation, I begin with deliberative democratic theory.
Theories of deliberative democracy tend to stress the salutary effect of pub-
licity, but as I will show a closer view of the dynamics of public communica-
tion can also shed light on how publicity can undermine the deliberative
ideal.

Arguments for Publicity


All theories of deliberative democracy contain something that could be
called a publicity principle. It has many forms but usually involves a claim
about the positive effects of going public with the reasons and arguments
backing up a policy, proposal, or claim. Publicity promotes the use of public
Copyright 2010. UBC Press. All rights reserved.

reason, and I use the term public reason here in a generic sense: public
reason involves justification and accountability directed at a public charac-
terized by pluralism.1 Public reasons are reasons that this public at large
could accept. The pressure to adopt public reason works via two mechan-
isms: I will call them the democratic and the Socratic mechanisms. The
democratic dynamic of publicity comes into play through expectations about
legitimacy. Public policy ought to be in the general interest. Within an open
forum, defenders of a public policy will feel compelled to articulate their
claims in public interest terms. The logic here is that publicly arguing for a
policy on the ground that it makes you better off, say, is not a public reason
and by itself is not likely to get very far within a modern liberal democratic
public sphere. The democratic dynamic makes obviously selfish, narrow, or
sectarian defences of public policy, especially public policy governing moral
disagreements or constitutional essentials, difficult to pursue in public.2

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Open versus Closed Constitutional Negotiation 79

Publicity has a democratic effect on deliberation by pushing participants


to use common good arguments rather than ones with limited or sectarian
appeal. I will call this a contrast between public reason and private reason.3
Private reason is sometimes selfish or self-interested, but it need not be; it
refers to reasons and justifications the public does not share. Candidates for
this category include reasons that appeal to some authority (e.g., scripture),
good (e.g., the priority of my or my groups well-being), or truth (e.g., God
is dead) that is not shared by all and could never be persuasive to all. Such
reasons are inappropriate justifications for public policy because they fail a
democratic accountability test.
From the Socratic point of view, publicity fosters the use of public reason
by encouraging participants to examine their own beliefs and arguments.
Sisela Bok, for example, nicely describes this Socratic element by saying that
having to argue in public often creates the necessity to articulate ones
position carefully, to defend it against unexpected counter arguments, to
take opposing points of view into consideration, to reveal the steps of rea-
soning one has used, and to state openly the principles to which one appeals
(1982, 114).4 Publicity has a Socratic effect on deliberation because, in forcing
interlocutors to respond to others, it forces them to give an account and
thus to offer reasons and justifications. The contrast here is not between
public reason and private reason. It is between public reason and some form
of weak, unexamined, or ill-defended reason. But what is this alternative
form of reasoning? Deliberative theory does not have a clear answer to this
question. It does not have a clear answer because there is a tendency to
conflate two meanings of the term publicity. The sense of publicity associ-
ated with the democratic effect is in public: exposing deliberation to public
scrutiny forces interlocutors to adopt the language of public interest (some-
times hypocritically). The second sense of publicity associated with the
Socratic dimension is not in public but in dialogue with others. The
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public nature here resides in dialogue taking place in the space between
people, not in its being in an open public sphere. This second, Socratic sense
of publicity can occur hidden from public view. Indeed, some theorists, like
Elster, argue that its achievement is much more likely in secret.
Elster argues that, generally speaking, secrecy rather than publicity (in the
in public sense) is desirable for high-quality deliberation, especially con-
stitutional deliberation. Although he agrees that publicity produces the
democratic effect of forcing people to argue in public interest terms, he adds
that sometimes it also has a very negative effect on the quality of discourse.
To illustrate this second effect, he compares the Constitutional Convention
of Philadelphia of 1787, which deliberated in secret, and the Assemble
Constituante in France of 1789, which deliberated in public. Elster concludes
that many of the debates at the Federal Convention were indeed of high
quality: remarkably free from cant and remarkably grounded in rational

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80 Simone Chambers

argument. By contrast, the discussions of the Assemble Constituante were


heavily tainted with rhetoric, demagoguery, and overbidding (1995, 225).
Elster himself is dissatisfied with this conclusion because it leaves us with
an irresolvable trade-off. On the one hand, secrecy tends to induce bar-
gaining, and publicity to induce argument, and arguing (at least with regard
to constitutional essentials) is better than bargaining because arguing en-
courages participants to think in terms of the common good. On the other
hand, private settings are better than public settings because they leave less
room for pre-commitment strategies and overbidding (250, 252). But all
things being equal, Elster counsels secrecy over publicity in constitutional
negotiations. The more inclusive and open discussions are, the more easily
they can be hijacked by demagogues.
Elster is not the only one to defend secrecy because it enhances delibera-
tion and makes it more likely that participants will use public reason. Inter-
estingly enough, Gutmann and Thompson, while defending a strong
principle of publicity at the level of normative theory, nevertheless acknow-
ledge that, as an empirical fact, secrecy is sometimes better than publicity
for maintaining quality. They also appeal to the Philadelphia Constitutional
Convention of 1787 as an illustration of the beneficial effects of secrecy.
Here they side with Madison, a defender of secrecy, against Jefferson, a critic
of secrecy, because excluding the public at large contributed to the high
quality of debate. Because sessions were secret, members could speak can-
didly, change their positions, and accept compromises without constantly
worrying about what the public and the press might say (Gutmann and
Thompson 1996, 115). They argue that deliberative secrecy is a justifiable
way of encouraging better discussion and fuller consideration of legislation.
Publicity increases political pressure on legislators to bring a popular bill to
a vote before it has received thorough discussion in committee ... Secrecy
also serves another deliberative purpose: Legislators remain freer to change
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their minds about a Bill in response to on going discussions (116). Gutmann


and Thompson go back and forth between the two senses of publicity I noted
above without acknowledging the distinction. When defending the salutary
effects of publicity, they are usually referring to the benefits of critical dia-
logue. When outlining the harmful effects of publicity, they are usually
talking about going public.

Rethinking Publicity
This brief analysis suggests the need to disaggregate the Socratic and demo-
cratic elements of deliberation and introduces a third type of reason to the
public/private reason distinction. Elsters work makes the need for an addi-
tional category especially evident. Private reason appeals to a restricted
audience, with the most restricted being oneself. Public reason, which Elster
(following Jrgen Habermas) calls arguing, appeals to a generalized audience.

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Open versus Closed Constitutional Negotiation 81

Figure 4.1
Dimensions of public reason

Democratic dimension

Public reason Private reason


Socratic dimension

Public reason Robust reasoning and Robust reasoning and


general appeal bargaining and/or
particular appeal

Plebiscitary Unexamined reasoning Unexamined reasoning


rhetoric and general appeal and particular appeal

Ideally, the reason should be universalistic, impartial, or appeal to a common


good. What goes wrong when we move from secret deliberation to public
deliberation? The problem is not that there are countervailing forces that
push speakers back into the use of private reason. The orators of the Assem-
ble Constituante were not accused of introducing private reason or engaging
in divisive bargaining. The problem Elster points to is that a type of ersatz
public reason comes into play. Lets call it plebiscitary rhetoric. Speakers
still appeal to what they think are common or public values but with a twist.
Under the glare of publicity and without the critical influence of a dialogue
partner, these arguments are often unexamined and may be shallow, poorly
reasoned, pandering, or appeal to the worst we have in common.
Although not as troubled by the threat of demagogues as Elster, Gutmann
and Thompson are also concerned with what I have called plebiscitary
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rhetoric. The problems associated with going public are problems not of
private reason but of shallow reasoning: wanting to please the largest pos-
sible number of people or wanting to appear firm and decisive in the publics
eye. Thus, the appeal is general, but the content is suspect.
To grapple with some of these issues, I have developed a typology outlined
in Figure 4.1. I stress that it is a heuristic device that cannot capture the
fluidity of real debate, which naturally flows back and forth between these
categories. But perhaps it will be helpful in fixing terms.5
The horizontal axis represents the democratic dimension, which deals
with questions of justification and accountability under conditions of plural-
ism. This has been the primary focus of much normative deliberative demo-
cratic theory. It includes debates about the place of bargaining within
deliberation as well as about the place of religious, cultural, and compre-
hensive moral views in deliberation. The vertical axis highlights the Socratic

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82 Simone Chambers

dimension. Although there has been an interesting and lively discussion


about the epistemic status of democratic deliberation, this discussion has
not, for the most part, tied these questions to the public nature of delibera-
tion (Estlund 1997).6
The upper right quadrant of Figure 4.1 contains well-reasoned debate that
takes private reason as its starting point. Now, there are many public policy
issues where appeal to private reasons, both in the sense of individual or
group utility maximization and in the sense of appeal to unshared compre-
hensive values or controversial truth claims, is appropriate. Furthermore,
bargaining is often the fairest method of resolving a dispute, and in some
contexts appealing to deep but unshared beliefs for example, an indigen-
ous peoples religious ontology is also acceptable. We cannot expect nor
do we need to expect that every contribution to public debate will meet the
high standard of public reason. When and where it is legitimate to expect
citizens and their representatives to appeal to general-interest arguments or
seek impartiality is a much-debated issue, one I will not address here. Instead,
I am simply going to assume, without much argument, that especially with
respect to constitutional debate there are questions facing a public where
we would want participants to move from the top right quadrant into the
top left quadrant. The question that interests me is not so much when we
ought to expect citizens and their representatives to appeal to public reason
but whether appeal to public reason (in the full sense of a convergence of
the Socratic and democratic dimensions) is even conceivable in a broad
public forum under conditions of mass democracy.7
The bottom left quadrant of Figure 4.1 contains debate that appeals to a
broad public but where the reasoning is often unexamined. Here we may
think of plebiscitary rhetoric as running along a continuum from mild
pandering to manipulative demagoguery. Although private reason may not
have entered debate, what we normally think of as the elements of reason-
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able deliberation have certainly disappeared. Plebiscitary rhetoric can be


broken down into three broad and familiar strategies: manipulation, pan-
dering, and image maintenance. Manipulation and pandering are often
difficult to distinguish from one another. Take, for example, the modern
dependence on sophisticated public opinion research. On the one hand, it
makes public figures appear to be empty shells filled with data from focus
groups; the most important reason for recommending a policy is often the
empirical fact that it is popular. This is not a public reason strictly speaking,
although neither is it a private reason. On the other hand, public opinion
research is now such a precision instrument that it often uncovers which
strings to pull or buttons to push to gain support for unpopular poli-
cies.8 When candidates and policies are marketed, pandering and manipula-
tion are indistinguishable.

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Open versus Closed Constitutional Negotiation 83

Turning to the third strategy, image maintenance, leads to the last pleb-
iscitary strategy: image maintenance. Here the concern is with the way in
which public speech enhances or detracts from an image rather than the
way in which public speech supports or criticizes a proposal. Speakers, for
example, do not want to look weak by changing their minds and thus are
resistant to good arguments. Deliberation assumes that people change their
minds in light of arguments (see Mackie 2002). If full publicity makes such
change unlikely, then approximating deliberation in an open public forum
becomes equally unlikely. This is a serious problem in the contemporary
public sphere, where being persuaded by arguments can often be interpreted
in the press as flip-flopping.
The bottom right quadrant of Figure 4.1 speaks for itself. It potentially
contains the worst that a public sphere can offer. I am primarily interested,
however, in what goes on in the top left quadrant. Here is where the Socratic
and democratic elements converge. We may understand that convergence
sequentially or non-sequentially. In the sequential understanding, one can
imagine small-group, closed Socratic debate interspersed with large-group,
open democratic ratification. Gutmann and Thompson argue that this was
the virtue of the American constitutional process. In the non-sequential
model, we can think of joining the Socratic and democratic moments in
one conversation either in public or in a more sheltered setting.
I want to investigate the possibility of the non-sequential model in the
open public sphere. Although some sequentialism is inevitable in modern
democracies, it is important that we avoid a strict division of labour between
the Socratic and democratic dimensions, whereby all serious deliberation is
by sequestered elites and the public is asked only for thumbs up or down.
In other words, the model of the Constitutional Convention of 1787 is
unacceptable. The secret meetings were dominated by private reason in a
way that we today would find objectionable, and the public process of rati-
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fication did not include citizens in meaningful deliberation.9 In the American


case, citizen participation appears to fall far short of the ideals of deliberative
democracy. Although it is true that modern mass democracy requires a
division of labour between the public and those who write and sometimes
negotiate a constitution, we do not want that division of labour to exclude
citizens altogether from substantive deliberation about the issues.
Ideally, what we want is a public sphere not entirely dominated by pleb-
iscitary reason and closed sessions not entirely dominated by private reason.
Realistically, there will always be a plebiscitary effect in public discourse:
the critical quality of deliberation will decrease as audience size increases.
The empirical evidence for this seems clear. This should be understood as
one of the circumstances of modern mass democracy, not as a carte blanche
to go behind closed doors.10 In thinking through inclusive constitutional

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84 Simone Chambers

negotiation processes, designers must grapple with this fact and look for
ways of minimizing the plebiscitary effect in public. Conversely, we will
always need to have closed door sessions, shielded from the public. Here it
is important that we try to protect the process against the domination of
private reasons.
In public, we need to be attentive to circumstances that threaten the So-
cratic element of deliberation. Behind closed doors, we need to be attentive
to circumstances that threaten the democratic dimension. Both dimensions
are required for high-quality democratic deliberation.

Negotiating a Constitution

Retreat into Safe Havens


The ills of plebiscitary rhetoric are familiar. From academic circles to pundits
and throughout the popular and elite press, there is constant lament about
the quality of debate in the public sphere. Everybody is aware of it even if
no one really knows what to do about it. One common response to the low
quality of public debate is to try to bypass the broad public sphere. Theories
of deliberative democracy often attempt to identify or construct safe havens
of deliberation face-to-face encounters between citizens and between cit-
izens and elites, insulated from certain negative or distorting effects of the
broader public sphere. To be sure, these safe havens are not simply a response
to plebiscitary rhetoric. Efficiency and manageability, especially when draft-
ing constitutional language, also call for small-group encounters not overly
encumbered with publicity requirements. Deliberative opinion polls, citizen
juries, and citizen assemblies are examples of such citizen-centred delibera-
tive experiments,11 as were the five national theme conferences undertaken
in 1992 as consultative initiatives during the Charlottetown round of con-
stitutional talks (see Fishkin 1997 and Gastil 2000).
Safe havens are designed to promote dialogue, not monologue; they are
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places to exchange ideas, not deliver speeches; communication is unmedi-


ated and symmetrical. Votes rarely occur; the stress is on substantive argu-
ment, not numerical superiority. The result is that opinions are better
informed and more reasonable in the sense that participants are more likely
to take other peoples concerns and interests into account. Safe havens, when
well designed, promote the Socratic dimension of deliberation. These experi-
ments, participatory venues, and deliberative forums are important for many
reasons. They can give us a glimpse of what deliberative opinion might look
like; they are experiments in institutional design that can perhaps be applied
in other contexts; and, for the participants themselves, they are important
experiences in citizenship. The 1992 conferences were hugely successful as
deliberative experiments (Chambers 1998). Similar initiatives are observable
in many constitutional processes around the world, the hallmark of a trend

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Open versus Closed Constitutional Negotiation 85

in constitution making that stresses inclusion of non-traditional voices.


Research in this area is now well advanced, with numerous innovative in-
stitutional designs from which to choose.
These experiments have limitations, however. If we begin to think that
these venues are the only places in which deliberation can take place, then
we risk turning our backs on the broader democratic public sphere as a place
to pursue reasonable politics.12 These venues often lack authority and are
only weakly consultative, but more problematically they bring together only
a small sample of the citizen body. Their democratic credentials are suspect.
They usually need some further process of ratification that involves the mass
public through a referendum, plebiscite, or national election. No matter
how well designed these initial safe havens are, if the broad public sphere
is dominated by plebiscitary rhetoric, then the high level of deliberative
reasoning will be diluted or disappear altogether when debate moves into
the broad public sphere. This is a common story in constitutional negotia-
tion. The goodwill, constructive reasoning, and flexibility often produced
in safe havens fail to re-emerge in a subsequent referendum campaign.13
Referendum politics is mass politics. The fact is that if we wish to involve
large numbers of citizens in constitutional politics, then that politics will
be highly mediated and involve speaker/hearer asymmetry. From the political
speech to the infomercial, asymmetrical mediated communication domin-
ates our public space. This is a fact of mass democracy. If theories of delibera-
tive democracy assume that all such public exchanges are bad, then they
limit themselves and risk becoming overly utopian. Deliberative theory risks
becoming marginal to constitutional politics. As that politics becomes more
populist that is, as the expectation grows that citizens must be involved
in ratification deliberative theory will become less relevant. As the gap
widens between what goes on in safe havens between face-to-face interlocu-
tors and what goes on in the mass public, democratic ratification of delibera-
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tive outcomes will become increasingly difficult. It is not feasible to try to


deal with this problem by attempting to avoid popular ratification.14 In
addition to symmetrical face-to-face encounters, theories of deliberative
democracy need to develop an analysis of mediated and asymmetrical com-
munication along deliberative lines. In other words, to pursue the possibilities
of bringing together the Socratic and democratic moments in broad public
forums, we must look to the possibility of a deliberative orator.
Three types of communication dominated the final stage of the South
African constitutional debate: closed sessions of hard bargaining, rhetorical
appeals by national leaders, notably Nelson Mandela, and a widespread
public dialogue that ran the gamut from face-to-face town meetings to na-
tionally televised exchanges between elite experts. I have argued elsewhere
that the South African experience embodied a deliberative ideal of legitimacy
and that this was particularly evident in the inclusion of so many citizens

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86 Simone Chambers

in a process of consultation and discussion (Chambers 2004b). Asymmetrical,


highly mediated appeals of leaders in the broad public sphere were an es-
sential component in the success of the face-to-face initiatives. The fact that
polarizing, plebiscitary rhetoric did not hopelessly dominate the broad public
sphere significantly contributed to the constitutional process in South Africa.
I want to suggest that a certain form of deliberative rhetoric, exemplified by
Mandela, accompanied the face-to-face discussions of citizens and indeed
facilitated such discussions by diffusing anger and divisive argumentation.
Mass media, sound bites, and images communicated Mandelas rhetoric.
Nevertheless, this rhetoric facilitated public reason in both of the senses we
have been using. This is to say that Mandela appealed to both a form of
democratic reasoning and a form of Socratic reasoning in presenting the
case for the constitutional order to the public.
It is perhaps moot to ask whether, without Mandela, the South African
escape from apartheid could have been achieved or achieved with so little
bloodshed. It seems unlikely, however, that procedures alone, however well
designed, can fully account for this success. If leaders had resorted to pleb-
iscitary rhetoric, then no amount of institutional design would have been
able to raise the level of debate, even in small face-to-face forums.15 The
tenor of the broad public sphere shapes the possibility of smaller, face-to-face
encounters. The broad public sphere will never be dialogical, but perhaps it
can be deliberative. This involves achieving clarity on the nature of delibera-
tive as opposed to plebiscitary rhetoric and promoting the former while
criticizing the latter.
I do not have a solution to the problem of plebiscitary rhetoric. In a sense,
there is no solution since plebiscitary reason is a permanent and unavoidable
feature of the democratic public sphere. I can offer no institutional or pro-
cedural guarantees that only the Mandelas of this world rather than the
Mirabeaus gain the ear of the public. I am convinced, however, that the
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answer cannot necessarily be found in minimizing the opportunity for either


a Mandela or a Mirabeau to gain public influence. This strategy involves
moving essential debates out of the public eye and involving citizens in
deliberation in safe havens. This strategy risks ceding the broader public
sphere of asymmetrical, mediated communication fully to plebiscitary rhet-
oric. Instead, theories of deliberative democracy should develop critical
standards of rhetoric through which to call speakers to account. Rather than
restricting criticism to procedural considerations (especially conditions of
asymmetry and mediation), deliberative democratic theory should expand
its critical perspective to include standards for deliberative rhetoric.

Secret Negotiations
I turn now to the horizontal axis of Figure 4.1 and to the dangers facing
deliberation when it goes in camera. Although there is no guarantee that

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Open versus Closed Constitutional Negotiation 87

closed sessions will necessarily achieve a high level of Socratic reasoning,


many of the pressures to adopt plebiscitary rhetoric will be absent. Here
the threat to public reason is not plebiscitary reason but private reason. In
the literature on deliberative democracy, private reason has two forms. In the
first form, participants abandon arguing in favour of bargaining. Rather than
seeking to persuade through appeal to broad public interest arguments,
participants further their claims through threats and offers of log-rolling
and pay-offs. By contrast, in the open public, when a pressing national issue
is on the agenda, participants are less likely or less willing to appear as
maximizers of a particular interest or as spoilers if their group does not get
concessions.16
In the second form, private reason enters when participants appeal to
reasons that are sectarian or embedded in comprehensive worldviews not
widely shared by the public. To distinguish this form from bargaining, I will
call it the problem of particularity. As with bargaining, the dynamic of par-
ticularity is such that, as the audience widens and the forum becomes more
public, speakers will have to make their arguments more general; as the
audience narrows and there is less publicity, the pressure to widen appeals
diminishes.17 We can all think of counter-examples, of course: crude log-
rolling, spoiling threats, or blatant sectarian arguments made in broad public
forums.18 But it is also the case that elites who persist in pursuing these
strategies, especially regarding deep constitutional issues, or who fail to make
any attempt to seek out public reasons, are often marginalized in democratic
forums.
Private reason may display a high level of Socratic critical force. These
appeals may be well articulated, thought through, and well grounded. So,
for example, Gutmann and Thompson can praise the quality of deliberation
at the Constitutional Convention in Philadelphia and Elster can note that
it was remarkably free of cant. But today we might also find this particular
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deliberative forum to be suspiciously free of points of view other than the


enlightened republicanism of Christian propertied males of European descent
as well as overly dominated by bargaining. Although their deliberations
resulted in a document that has proven impressively resilient and flexible in
accommodating new claims, there is a strong case to be made that the fact
that slavery was an issue bargained over and not argued over in Philadelphia
was made possible by the secret and closed character of the proceedings. The
question now is how to reduce the risk that closed-door deliberations will
be particularist and/or dominated by bargaining.
We can encourage the use of public reason in secret by insisting on a di-
versity of opinion reproducing, as best we can, the critical function of
pluralism within the deliberative body. We might not know what is said,
but we should know who is invited to speak. On fundamental questions
that affect the broad public, the more secret and closed the debate, the more

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88 Simone Chambers

important the representation of all possible points of view. This representa-


tion safeguards against one set of interests dominating debate. Thus, although
it might be necessary for deliberation to be secret, it is essential that partici-
pation be made public. Publicizing the guest list will not rule out bargaining,
but what is wrong with bargaining? We might want to say that, when elites
begin horse-trading in, say, human rights and basic justice, fundamental
questions of legitimacy can easily get lost in the trade. Human rights are
what we should be defending with argument. Yet, although this is true,
political actors must also agree to human rights and write them into docu-
ments that require signatures. Human rights are justified by argument but
entrenched through politics, and politics often requires bargaining. To return
to our South African example, parties could never have reached a settlement
if they had not gone behind closed doors and hammered out agreements in
hard bargaining sessions.
What is crucial is ones reason for bargaining instead of arguing, and there
are often very good reasons to rely on a bargaining model of dispute resolu-
tion. But notice that this way of thinking about it makes deliberation that
is, arguing conceptually prior to bargaining. We need to argue about why
we need to bargain. Empirically, this means that closed-door bargaining
itself must be the topic of open debate.19 As with most constitutional nego-
tiations, many of the clauses in the South African constitution were the
result of hard bargaining. Not only did these compromises have to withstand
a broader public scrutiny, but also the very role and frequency of closed-door
bargaining became a topic of national debate. As in the Canadian case, an
increased role for the public in constitutional debate was partially the result
of widespread criticism of how closed and bargain oriented the early nego-
tiations were (Gloppen 1997). Yet, given a lexical ordering of arguing before
bargaining, the political process should be fluid, with a back and forth be-
tween closed bargaining and open public debate. Bargaining is kept in check
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by frequently exposing the process to the light of publicity.

Conclusion
The democratic public sphere is a huge and amorphous entity: there is not
really one public sphere but many public spheres made up of countless
crisscrossing conversations in a multiplicity of venues, from talk radio to
house committees, from newspaper editorials to meetings in church base-
ments. It is always risky, of course, to make sweeping generalizations about
the abstract construct of the public sphere. Furthermore, public spheres vary
from national context to national context, a factor especially important
when it comes to constitutional debates. Finally, there are many gradations
of openness and closedness. My intention here has been to investigate how
we conceptualize the problem of open versus closed sessions when thinking
about constitutional negotiations and to point out, in rather broad strokes,

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Open versus Closed Constitutional Negotiation 89

some factors we need to keep in mind when designing constitutional


processes.
When confronted with the problem of plebiscitary rhetoric in the broad
public sphere, deliberative democratic theory offers two methods of avoid-
ance, one for elites and framers, the other for ordinary citizens. With regard
to elites and framers, the conclusion is that sometimes, perhaps often, crucial
parts of constitutional negotiation must go in camera. To use Gutmann and
Thompsons formulation, this is a way of encouraging better discussion
and fuller consideration of proposals (1996, 116). When deliberation takes
place in secret, elites need not worry so much about how their arguments
will play in Peoria. I have no quarrel with this conclusion but have offered
two caveats. First, like Gutmann and Thompson, I think that it must be
possible to publicly discuss the need to go behind closed doors. Second, and
even more important, the public needs to know who is going into the back
room. In other words, what people say and how they argue sometimes need
to be shielded from the public but not the fact that they are negotiating or
facts about who is negotiating.
Although elites avoid the temptations of plebiscitary rhetoric by deliberat-
ing in secret, the citizen public avoids plebiscitary rhetoric by deliberating
in safe havens. Such havens can include town meetings, consultative policy
initiatives, deliberative opinion polls, roving commissions, and citizen as-
semblies. Such initiatives are very encouraging from a democratic point of
view: there really are people out there who are interested in pursuing delib-
erative politics and who will expend civic energy on listening to what others
have to say. Although many of these havens are public (i.e., not secret), their
institutional design is premised on a mistrust of asymmetrical, mediated
communication. Like elites talking in secret, these havens attempt to escape
the modern mass public sphere and retreat into a dialogical (Socratic) space.
In the cases of elites going behind closed doors and of citizens constructing
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dialogical spaces, the problem of plebiscitary rhetoric is sidestepped rather


than confronted. The possibility of a national deliberation day notwithstand-
ing, most citizens will not have the opportunity to participate in these
venues.20 Even for those who do participate, it is not clear how much of the
Socratic process will stick: there is of course hope that when participants
emerge from the safe havens they will hang on to their well-reasoned and
deliberated opinions in the face of a thoroughly plebiscite-oriented public
sphere, but there is also room for doubt. Thus, in addition to avoidance
strategies, deliberative democratic theory ought to confront plebiscitary
rhetoric head-on. I have suggested that the first step in this process is mak-
ing conceptual distinctions between the different ways that plebiscitary
rhetoric and private reason can threaten deliberation. The second step, one
that I have not taken in this chapter, is to deal with the mass public directly
by developing a clear model of deliberative rhetoric that provides criteria

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90 Simone Chambers

by which we can criticize speeches, orators, and the media through which
they communicate.

Notes
1 The term public reason is often used to signify John Rawlss particular understanding of
what is to count as a public reason. I use the term here loosely and leave open the question
of what is or is not an acceptable public reason.
2 There is a broad range within contemporary debate when it comes to how strongly or
weakly this mechanism is said to operate. At one end of the spectrum are theorists such as
John Dryzek, Joshua Cohen, and Jon Elster, who argue in terms of individual psychology
and cognitive dissonance: There are certain arguments that simply cannot be stated pub-
licly. In a political debate it is pragmatically impossible to argue that a given solution should
be chosen just because it is good for oneself. By the very act of engaging in public debate
by arguing rather than bargaining one has ruled out the possibility of invoking such
reasons (Elster 1997, 12). See also Cohen (1996) and Dryzek (2000, 46-47). Other theorists
such as Amy Gutmann and Dennis Thompson or Seyla Benhabib admit that individuals
sometimes use blatantly self-serving arguments in public, but as a general matter of political
culture they are often difficult to sustain, especially when a fundamental moral issue or
one of basic justice is in question. See Benhabib (1996) and Gutmann and Thompson (1996,
126-27).
3 On the question of abstraction from non-generalizable views, see Bohman (1999, 176-78).
I use the Kantian term private reason rather than the Rawlsian term non-public reason
because I want to argue that there are two separate types of non-public reason: private
reason and plebiscitary reason.
4 There is, of course, much debate about how exactly to characterize the Socratic elenchus.
Many people have argued that it is itself manipulative, using shame more than reason. At
the moment, my use of the term Socratic is not intended to reflect a specific reading of
Socrates; rather, it is to appeal to a popular idea of critical dialogue. For a defence of the
Socratic elenchus, see Vlastos (1991).
5 Bruce Ackerman and James Fishkin have a similar diagram to try to illustrate the problem
of achieving deliberative opinion within the mass public versus a select group. They do
not, however, connect it to the public reason debate. See Ackerman and Fishkin (2003, 28).
6 A central theme of Habermas (1993) was the inverse relation between quality of delibera-
tion and inclusiveness in the public sphere. Habermas has since moved away from this
argument. For a discussion of his earlier position, see Calhoun (1993).
7 I discuss this possibility in more detail in Chambers (2004a).
8 See Ackerman and Fishkin (2004, 9-11) for a discussion of the relationship between modern
Copyright 2010. UBC Press. All rights reserved.

polling and deliberative politics. For a useful treatment of the relationship between pander-
ing and manipulation, see Jacobs and Shapiro (2000). An interesting question for deliberative
theory is this: Where is the line between deliberative consultation and focus group polling?
For one answer, see Fishkin in this volume.
9 Slavery was an issue bargained over between the major economic interests of the time.
Citizens had little or no input into the process of constitution framing and were not even
asked to choose delegates to Philadelphia. At the ratification stage, the low voter turnout
for delegates to the state ratifying conventions was one possible indicator that citizens were
not particularly engaged in the debate. See Ackerman (1998). For a stronger critique of the
claim to speak for the people, see Beard (1986), Derrida (1986), and Tully (1994, 93-95).
10 I am thinking of Humes appeals to the circumstances of justice.
11 See the fourth section of this volume for further discussion of such forums.
12 For a discussion of how realistic face-to-face encounters are as a model of democracy, see
Goodin (2003).
13 This is what appears to have happened in the Charlottetown referendum, and some theorists
are arguing that it is what happened with the defeat of the European constitution in France
and the Netherlands (Chambers 1998).

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Open versus Closed Constitutional Negotiation 91

14 South Africa did not have a referendum on its constitution, although earlier national elec-
tions gave popular endorsement to the constitutional process. South Africa is a special case,
however. Western democracies are under increasing pressure to bring constitutional docu-
ments to the people for direct ratification.
15 Indeed, early stages of the process were dominated by plebiscitary reason accompanied by
mob violence.
16 The logic of bargaining can also work the other way. A militant grassroots constituency
uninterested in concessions can force its leaders behind closed doors if those leaders choose
to pursue an accommodationist strategy.
17 As an empirical matter, it could well be that individuals appeal to public reason in private
sessions. I am saying only that behind closed doors one of the main external inducements
to appeal to public reason is absent. Some individuals may not need external inducements
and use public reason because of a personal civic commitment, for example.
18 Robert Goodin (1992, 133) has a marvelous example of blatant log-rolling from the floor
of the American Senate.
19 This is the logic behind Gutmann and Thompsons (1996, 115) secrecy test.
20 Although I applaud the utopian realism of Ackerman and Fishkin (2004) in proposing
that Americans take a day off every four years and deliberate in small groups at the annual
cost of $15 billion, I do not suppose that this will happen in the near future. See also Chapter
10 in this volume.
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5
Is Democracy a Means to
Global Justice?
James Bohman

Democracy can be justified with any number of reasons. Many such justifi-
cations are intrinsic, related to realizing various moral ends and political
ideals. The rights, forms of equality, and freedoms constitutive of the demo-
cratic ideal are substantively related to various ends of justice, including
self-development and self-government. Yet, even beyond such constitutive
relations to the ends of justice, democracy is also desirable as a means to
many different ends, including problem solving, pooling information, re-
vealing preferences, and so on, all of which may be contextually important
as means to achieving aspects of justice. Historically, many reformers and
social movements have placed their hopes in democracy as an instrument
to promote social justice. Indeed, democracy has historically been a linchpin
of change, in large part because the political status of persons as citizens has
proved a robust basis for generalizing rights and making claims to justice.1
In many human rights documents, such as the Universal Declaration of the
Rights of Man, democracy is often instrumentally justified as the best way
to foster the full realization of all human rights (UNCHR 1999). Empirical
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evidence also suggests other instrumental relationships. One well-known


correlation is between famine prevention and democratic entitlements, such
as freedom of the press and association; another may be found in the demo-
cratic peace hypothesis, the empirical claim that democracies are less likely
to go to war.2 These instrumental benefits may also be related to intrinsic
features of democracy, especially to public deliberation.
At least in the long term, then, there seems to be no denying that numer-
ous innovations have made democracy more stable and increasingly able to
achieve the ends of justice than its past realizations. At the same time, there
is good evidence to cast doubt on Jane Addams adage that the only cure
for the ills of democracy is more democracy (Addams 1902, 11-12). While
endorsing this hopeful stance, John Dewey (1988, 325) immediately intro-
duces a proviso: democracy can remedy its own ills only by becoming a
democracy that is genuinely different in kind. Otherwise, democracy seems

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Is Democracy a Means to Global Justice? 93

to face a vicious circularity: For democracy to promote justice, it must al-


ready be just (Young 2002, 35). Call this the democratic circle. Although
it can never be said to disappear, the circle can become virtuous through
the democratic minimum, the achievement of a normative status sufficient
for citizens to exercise their creative powers to reshape democracy according
to the demands of justice. The account that I offer here is deliberative since
it depends on the relationship between deliberation, accountability, and the
capacity of citizens to introduce novel demands and claims.
Of course, the very idea of such a reform requires that justice is not an
all-or-nothing affair but a matter of degree and that the same is true of
democracy. The possibility of the gradual amelioration of injustice is indeed
the main reason why democrats such as Dewey believe they can break the
circle through democratic processes. In the same vein, many argue that the
solution to the problems of democracy is to deepen democracy, to make it
more inclusive of a greater number of agents and wider in terms of accept-
able avenues of influence and modes of political inquiry.3 Deliberative
democracy is one such proposal. Democracy is that set of institutions and
procedures by which individuals are empowered as free and equal citizens
to form and change the terms of their common life, including the nature
and scope of democracy itself. In this sense, deliberative democracy is reflexive
to the extent that it consists of procedures by which rules and practices are
subject to the deliberation of citizens themselves. At the same time, deep-
ening democracy through deliberation currently has its limits. By including
more people in decision making, a democracy may better achieve justice for
its own citizens, although this effect does not necessarily occur and certainly
need not include those outside the polity. If this is so, then how can dem-
ocracy become a means to global justice?
By making the terms of democratic order subject to claims to justice, in-
cluding the scope of citizenship itself, a properly instituted transnational
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deliberative democracy provides the basis for a solution to the problem of


the democratic circle at the global level. My argument has three steps. First,
I offer an account of the relationship between democracy and human rights
that emphasizes the universal character of human political rights. Second,
this understanding of rights as normative statuses and powers provides the
conceptual basis for the specification of a democratic minimum. Several
attempts have been made to work out such a conception, although they are
either too weak or too strong to fill this role.4 The conception of the demo-
cratic minimum developed here is freedom from domination operationalized
in a very specific sense. Employing Hannah Arendts conception of freedom
as the capacity to begin (1976, 470), I contend that the form of non-
domination sufficient for the democratic minimum is the capability to initi-
ate deliberation and thus democratic decision-making processes. Third, I
apply this conception to the political form of a transnational polity, in which

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94 James Bohman

citizens enjoy the democratic minimum as members of various demoi. In


such a multilevel polity, there is always the possibility of democratic dom-
ination of one demos over others.
Several examples will inform this discussion. On the negative side, the
current legal powerlessness of American cities in relation to other demoi is
instructive, as are international financial institutions. I argue that such
domination is overcome as long as the capacity to initiate deliberation and
political action is distributed among various units and various levels. On
the positive side, the European Union provides grounds for hope. One con-
sequence of this examination of the EU is that it shows how the democratic
minimum can be used to make issues of borders endogenous to democracy
and for that reason a matter of justice.

Justice and the Democratic Minimum: Ideal and Non-Ideal Theory


Before turning to the democratic minimum, in this section I develop a re-
publican account of universal political rights to membership, such as the
internationally recognized right to nationality. Such rights underwrite the
claim that the political community has the obligation to correct certain
forms of injustice. On this basis, a democracy that realizes human rights
does not just endorse various universal entitlements, such as voting or pol-
itical participation, but also makes it possible for citizens to exercise the
creative dimension of citizenship, central to which is the capacity to initiate
deliberation on democracy itself. In light of these rights, bearers of human
rights become self-authorizing sources of claims, to use John Rawlss term
(Rawls 1996, 100). Usually, this means that political rights give bearers an
equal share in collective self-determination. This interpretation, however,
is overly particularistic and in tension with the openness of democratic
institutions to all claims to justice. For this reason, rights against domination
are more fundamental than rights to collective self-determination; further-
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more, unlike self-determination, rights against domination include the


authorization to make claims to justice that go beyond the normative frame-
work of any particular set of institutions and roles. They include normative
powers that may be exercised against domination as it emerges through the
capacity of powerful institutions such as states to assign rights and impose
duties. These powers are often taken to imply legal rights for states and im-
munities from state power for individuals as citizens.
Why does the realization of human rights require democracy? It is only
as a citizen within the normative framework of a democracy that this self-
authorization to initiate meaningful political activity is made actual. The
capacity to make claims represents a minimum sense of self-governance that
does not presuppose any particular conception of democracy but could be
realized in a wide variety of possible practices and procedures. The fact that

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Is Democracy a Means to Global Justice? 95

human rights require democracy (even in some minimal sense) has poten-
tially troubling consequences for their realization. A circularity seems to
ensue: human rights require democracy in order to be exercised, yet dem-
ocracy requires human rights in order to be self-correcting and non-tyrannical
and thus minimally just. Only under ideal conditions would democracy
realize justice and rights. In non-ideal conditions, democracy might even
promote the continued existence of unjust circumstances as shown by the
long history of the acceptance of slavery and then segregation in the United
States either instrumentally in failing to be a means to justice or constitu-
tively in failing to embody sufficiently deep or extensive democratic norms
in its institutions.
It follows that democracy is related to justice in at least two different ways,
and these complex relationships help give rise to the problem of the demo-
cratic circle. This circularity leads Rawls (2001a, 32) to distinguish between
ideal and non-ideal theory, where non-ideal conditions are defined in terms
of the likelihood of non-compliance with political norms. This distinction
between ideal and non-ideal theory leads him to distinguish domains of
applicability of the theory of justice: while people may meet the demands
of ideal theory internally, international relations or relations among peoples
are part of non-ideal theory in which the requirements of political justice
must be weakened for the sake of toleration among peoples (Rawls 1999,
172; 2001a, 32).5 Understood in terms of the theory of democracy, the
methodological distinction between ideal and non-ideal theory then simply
assumes that the democratic circle cannot be broken when the circumstances
of justice do not apply. However, not all non-ideal cases are the same. Some
unjust democracies, for example the United States prior to the Civil War,
can be made more just if they become a different kind of democracy.
Since ideal conditions are by definition never empirically real, virtuous
circles must always operate under non-ideal, but not entirely unjust, condi-
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tions. Tyranny provides the contrast class of entirely unjust conditions.


Domination is possible without the total absence of justice in mixed circum-
stances in which institutions may provide conditions instrumental to justice
for some but not all. Determining how such democratic circles become fruit-
ful under less than just conditions is the problem of the democratic minimum.
Once delineated more precisely, it can then be argued that the democratic
minimum is not domain specific. This minimum or threshold may or may
not be present in any particular transnational and international institutions,
just as it may fail to be present within constitutional states. In republican
terms, both international and domestic institutions may be dominators.
The international democratic deficit is particularly apparent in the lack of
transparency in many intergovernmental negotiations as well as in rules and
frameworks that permit only more powerful stakeholders in most bargaining

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96 James Bohman

situations. The latter case is clearly evident in multi-unit polities. Whenever


a variety of subunits is needed to make the polity well governed, the demo-
cratic minimum may be unevenly distributed within a complex polity, as
the example of the legal status of US cities as corporations will show. The
institutions that organize the polity in subunits with their own demoi may
currently be unable to provide opportunities for the self-development needed
if members are fully to make use of their rights of membership. In these
cases, membership may not provide statuses, powers, or entitlements suf-
ficient to break the democratic circle, so that they must then be acquired by
other means or through other political relationships.
The purpose of the conception of the democratic minimum is then to
describe the necessary but not sufficient conditions for democratic arrange-
ments to be a means to realize justice under appropriate non-ideal conditions.
Even if these conditions are realized internally, a democracy will not neces-
sarily be just in all its dealings. It may not be just, for example, in all domains
in which citizens are obligated, and it may not be just in relation to those
non-citizens affected by its decisions. To the extent that the minimum is a
matter of degree, it can be specified along a number of dimensions and in
a variety of procedures. But once this minimum is met, a democracy cannot
become more just without becoming more democratic at the same time and
vice versa. This is so, in the first instance, because certain features of dem-
ocracy are constitutive of justice, in particular its notion of citizens as free
and equal. Part of its egalitarian ideal is not simply that individuals are free
from interference but also that they are free in the sense of possessing certain
equal normative powers, namely, the powers to assign and modify duties
and obligations. The issue is not one of increasing rationality as such. When
citizens become less free with regard to their judgments or in considering
the claims of others, their polity becomes less just and, for the same reason,
less democratic. Judgments made in fear after traumatic events may make
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a polity less just and more prone to domination for the sake of security and,
to this extent, less democratic. Just as it holds among units of a democratic
polity, the minimum must for this reason have application across polities
as well; one polity may undermine the democratic minimum of another by
ignoring its normative status and powers as a demos. In doing so, it violates
the human rights and standing of democratic citizens and acts as a dominator
toward other demoi.
Democracies that recognize the political rights of the citizens of other
democracies and all the citizens of their own have obligations to assure a
whole variety of minima. These minima would apply to various locations,
modes, and avenues for the exercise of influence over decisions. Just as
citizens within a polity may disagree with one another about whether or
not they are violating the democratic minimum, so too may citizens of

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Is Democracy a Means to Global Justice? 97

different polities. The issue in both cases is one of normative statuses and
powers: it concerns whether or not someone has the normative power to
make a claim about which others will genuinely deliberate. The only way
the minimum will be met for all is if all decide together. If others have equal
political rights as human rights, then the obligation to avoid domination
applies equally to non-members as to members. Otherwise, non-members
have no claim to justice or to the exercise of their normative powers. How-
ever, our obligations to members may well be more extensive even in this
regard, particularly if we are involved with them in a web of social and
political relationships that increase the intensity of domination. The demo-
cratic circle suggests that duties to non-citizens are thus distinct not in kind
but in degree.
The democratic minimum does not solely concern the distribution of
minimally necessary normative powers to make it possible for citizens to
influence the distributions of rights and duties. A democracy could promote
justice by means other than statuses or powers, as when it develops more
effective and better-informed ways of solving problems that have other
wise been ignored. A democracy may also promote justice through the virtues
of its cooperative modes of inquiry: in making available the full range of
information, for example, or in the creativity and effectiveness of its col-
laborative problem solving. As a means to knowledge, democracy may
promote justice outside formal institutions as associative and expressive
freedoms spill over into a broader political domain over the long term. A
democracy could also be effective in securing compliance to rules that pro-
mote beneficial consequences related to claims of justice or in developing
citizens political capabilities in virtue of their participation with others.
These instrumental benefits for justice need not necessarily occur, even
under propitious circumstances. In light of the epistemic values promoted
by democracy, a good case can be made that they are not merely contingent
Copyright 2010. UBC Press. All rights reserved.

by-products but also the results of the reduction of bias through the avail-
ability of all relevant perspectives due to democracys normative commit-
ments to cooperative deliberation and open discussion. These benefits may,
in many cases, accrue only if institutions already meet the democratic min-
imum. Problems may be solved effectively only if they are on the agenda;
cooperation and compliance are enhanced only if those affected are able to
effectively participate or be heard. Here is an instance of a possible difference
principle for non-domination: no increases in freedom overall (say by gains
in institutional efficacy) that do not also decrease the extent and intensity
of domination. Many international institutions fail to meet this standard
and may increase domination by increasing their efficacy and efficiency.
The obvious place to begin in developing the democratic minimum is in
terms of the republican account of those human rights that contribute to

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98 James Bohman

having the status of a free citizen. Certainly, the absence of tyranny entailed
by membership in humanity is a basic condition of any just polity. Nonethe-
less, the mere absence of tyranny does not reach the democratic threshold.
Although the conditions necessary for non-tyranny are part of non-
domination, it may well be the case that democracies in settler societies
that continue to act in tyrannous ways toward Aboriginal peoples, for ex-
ample, have not yet met all their obligations to realize human political
rights. In the standard liberal view, this non-tyranny condition could be
fulfilled by simple non-interference, thus making it a plausible political
means to realize more justice. This argument opens a potentially vicious
democratic circle in presupposing that the conditions of justice already
hold. Non-tyranny is insufficient to establish the potential reflexivity about
normative powers necessary for rectifying injustice. For example, even if
protection against the worst injustices is secured by mechanisms of consul-
tation in a Rawlsian well-ordered hierarchical society, the terms of justice
and the framework for assigning normative powers are not thereby made
part of the democratically open agenda. What is lacking? The answer is re-
publican and concerns the relationship between non-domination and
democratically achieved justice.
The democratic minimum requires more of legitimate authority than that
it grants the permission to be consulted or even that it allows citizens to
respond to items on its agenda. Consider the republican contrast between
citizen and slave. Unlike the slave, a citizen has the ability to begin delibera-
tion; citizenship entails the ability not just to respond but also to set the
items on an agenda. As Arendt (1976, 479) puts it, Beginning, before it
becomes a historical event, is the supreme human capacity; politically, it is
identical with human freedom. This capacity marks the specific democratic
contrast between master and slave, even if the master is an enlightened,
liberal-minded despot who permits a large measure of personal freedom.6
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Whatever freedoms are granted to the slave, she remains dominated and
thus lacks any intrinsic normative authority even over herself; at best, she
may only respond to the initiatives of others. As opposed to the maximiza-
tion of various liberties, the capacity to begin thus provides the basic measure
for the normative status of persons required for the democratic minimum.
It should also be noted that extreme destitution creates conditions that are
functionally equivalent to tyranny and the absence of political rights.7
Consider two non-deliberative accounts of non-domination. Both Pettits
account of tracking and Buchanans interpretation of accountability offer
sparse views of the democratic minimum. Both might object that one does
not have to be able to initiate deliberation to hold authority accountable.
Following Pettit (1997, 88ff.), accountability demands only that officials and
administrators track the public good of citizens, understood here in

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Is Democracy a Means to Global Justice? 99

objectivist terms as something that officials can fail to track correctly for
epistemic reasons. Since officials themselves determine what counts as epi-
stemically good tracking, according to their own criteria of relevance and
the acceptable range of interpretations of the publics good, the absence of
deliberation makes them potential dominators. A similar problem besets
Buchanans (2004, 176-85) more modest reliance on the empirical fact that
democracy protects human rights through the right combination of rep-
resentative institutions; they are said to most reliably achieve the account-
ability necessary for protecting basic human rights. Whatever this right
combination might be, the accountability offered by such institutions is
coarse grained and post hoc; historically, they have not avoided the worst
sort of abuses of racism and sexism without extra-institutional struggles.
Accountability comes from citizens themselves; citizens, not officials, inter-
pret the claims they make and the democratic standards of justification that
support them. In cases of injustice, it is this dynamic and creative interaction
between freedom of initiation and democratic accountability that makes it
possible for citizens to break the democratic circle. Although representative
institutions regularize already established capabilities to influence decisions,
they often entrench the communicative power of particular portions of the
public over others. Their role may be to facilitate complex deliberative
interactions across levels and polities as well as to facilitate the flow of in-
formation across such institutions and the public. In such a system, office
holders may also initiate and co-ordinate deliberation and decision making
of various sorts, promoting not only the stability of the system but also its
legitimacy. For my purposes here, such intermediary institutions would also
promote the capabilities of citizens to communicate and deliberate across
levels and sites as well as the overall openness of institutions to claims made
by citizens across polities and demoi.
To develop the virtues of this particular republican account, the demo-
Copyright 2010. UBC Press. All rights reserved.

cratic threshold of freedom as the capacity to begin can then be further


operationalized (and thus made more specific) in two ways: first, in terms
of the capacity of citizens to amend the basic normative framework that
is, the power to change how rights and duties are assigned; second, in terms
of the capacity to get an item on an open agenda and thus initiate joint,
public deliberation. The first problem is solved via constitutionalism in the
broad sense of the term. The second demands a certain organization of the
polity, with a differentiated structure of multiple levels and units. A political
order meets the democratic minimum in the first case only if it is a reflexive
order.
Even so, a constitutional order provides the appropriate openness to re-
vision and deliberation that makes it a fundamental requirement of dem-
ocracy, whether with respect to governance or government. The power of

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100 James Bohman

amendment and adjustment alone is not sufficient for the democratic min-
imum; what is distinctive about a constitutional order is the use of political
right to create the possibility of reordering the order itself (Sabel 1997,
159). As James Tully (2002, 217) points out, this reflexive capacity must go
all the way down (even if not all at once): If citizens are to be free, then
the procedures by which they deliberate, the reasons they accept as public
reasons and the practices of governance they are permitted to test by these
democratic means must not be imposed from the outside but must them-
selves be open to deliberation and amendment. Tully clearly has in mind
the ways in which constitutions have to change to accommodate the claims
to justice of Aboriginal peoples, who have been regarded historically as
non-citizens. As I noted earlier, constitutions do not guarantee that citizens
are the fully self-determining authors of all their obligations; such a capacity
to initiate a challenge and reorder the legal order itself (including rights,
duties, and boundaries) is a necessary condition for non-domination. A
constitution gives citizens normative powers over normative powers, and
political rights include the power to change the assignment of rights and
duties. But this does not exhaust the democratic minimum. For those who
have lost their right to have rights, the international political community
is the last addressee of deliberative appeals to justice; in this case, widening
of the democratic minimum and thus of citizenship status is required for
deepening democracy.

The Democratic Circle Revisited: Control, Domination,


and the Demoi Problem
In established democracies, such widening and deepening of membership
to include more rights and more citizens are necessary for a constant process
of renewal and self-correction and thus for reflexivity about both ends and
means. This is because democracy has a particular dual structure among
Copyright 2010. UBC Press. All rights reserved.

institutions as both a means to justice and a realization of some of its con-


stitutive ends. There are other problems of institutional design in established
democracies, to the extent that such institutions have over time promoted
and entrenched conditions of ever-increasing pluralism, complexity, and
interdependence. Under these circumstances, it may also be the case that
some members, qua citizens in one or more units, have lost the full range
of their constituent power to initiate deliberation. It is widely recognized
that democratic states may dominate one another in some particular respect,
as is the case in various international financial institutions with weighted
voting indexed to contribution, but political domination is also common
within states as a consequence of centralization. Call this the demoi prob-
lem, that of domination across the units of the same democracy and across
different democratic polities. It emerges wherever there are multiple units
necessary for good governance, yet a unitary institutional design persists

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Is Democracy a Means to Global Justice? 101

that is still guided by the principle that democracy is popular sovereignty,


control by a singular demos. For example, it is not clear just how popular
sovereignty is supposed to settle conflicts across units, as when citizens qua
members are denied the power to solve problems because they are also cit-
izens of larger units such as state or federal institutions. But federalism may
be organized to promote justice, as when powers and capabilities of self-rule
are entrenched at multiple levels at once. Federalism in the case of cities is
hierarchical; in the case of the EU, it is non-hierarchical. In the one case,
the powers that one has at the higher level defeat citizen powers at lower
levels; in the non-hierarchical case, these powers are mutually reinforcing,
as when human rights in the EU can be claimed both against the member
state and the EU as a whole, thus expanding citizens powers to initiate jur-
idical appeals through multiple levels.
Already in the eighteenth century, federalist thinkers formulated the
political basis for an alternative, transnational understanding of the right
to membership in a multi-unit polity.8 As opposed to the unitary sovereignty
of the people in either its Lockean or its Rousseauian version, there is an
alternative democratic tradition that recognizes the importance not only of
a plurality of democratic forms but also of the necessity of transnational
institutions to overcome the effects of modern colonialism. Indeed, many
thinkers have used republican ideas to argue for a kind of transnational
federalism as the alternative to colonial resurgence of the antiquated political
institutions of empire. For many republicans (including Diderot, Price, and
Turgot, among others), federalism had the dispersion of power necessary to
overcome the domination of colonies by the centre.9 When contrasted with
the clearly centralized power of early colonial empires and the singularity
of monarchical sovereignty, the plural federalist polity had great appeal. As
the term federalism is used now, it may denote too strong an emphasis
on centralization. Certainly, this is the connotation it has in current debates
Copyright 2010. UBC Press. All rights reserved.

about the EU. In historical experiences of federalism, it might be best to call


such a polity a democracy of demoi that disperses sovereignty so as to
realize the value of non-domination of all citizens. But with the emergence
of imperium abroad, dominium within the state inevitably reasserted itself as
the metropolitan centre sought to control the colonial periphery by escalat-
ing its authority and coercive power. As a result, anti-colonial republicans
argued that the imperial form of European globalization undermined repub-
lican checks on sovereign power. They concluded that the extension of re-
publican institutions beyond the state was the only solution. From Diderot
to Kant to Madison, a transnational federation in which citizens powers
and statuses are robust at all levels is the solution to the European
imperium.
Consider first how even federalism alone does not solve the problem of
domination without providing for a democratic minimum for citizens in

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102 James Bohman

each unit. Republican federalists saw non-hierarchical forms of organization


as necessary for achieving a transnational democratic minimum, yet they
failed to consider whether non-unitary federalist polities have the potential
for the same sort of domination that they rightly rejected for singular enti-
ties with centralized organization of political power. Even in a plural polity,
some entities may lack the democratic minimum, and their demoi may in
turn be dominated by other demoi (when the members of some subunit are
taken to be demoi with regard to self-government). This domination may
also occur even among independent demoi. If an uneven distribution of
non-domination favours one state over another, its increased capacity may
lead to the further domination of others in cases of political competition
(say between India and Pakistan). Other units may undermine the distribu-
tion of the democratic minimum to the extent that their borders entail the
capacity to command non-interference and thus prohibit political influence
across borders. Instead, a democratic relationship among units requires por-
ous boundaries and procedurally open jurisdiction if they are to remain
democratic and just.
Take the example of the legal entitlements of cities to rule themselves
within the institutions of American federalism. It shows that merely having
multiple units is not enough unless they stand in democratically just rela-
tionships to each other. According to Gerald Frug (1999, Chapter 6), the
development of the legal definition of cities as private corporations that
came to define their entitlements and powers has made them increasingly
powerless with respect to states. As a result, their democratic arrangements
deprive them of the means to change many unjust circumstances. In most
democracies, cities emerged historically as relatively autonomous and self-
governing entities; over time, however, their powers were reduced in the
general trend to eliminate all local forms of protectionism and intermediate
levels of association and institutions for the sake of state control. Giving
Copyright 2010. UBC Press. All rights reserved.

cities the same legal status as private corporations completed the process.
This definition is reflected in cities primary powers, all of which are related
to property: the power to tax, zone, and incorporate. With this definition
of the legal basis of their powers, cities became corporations that were pol-
itically subordinated to states, sometimes granted authority and home rule
for purely local concerns. The result was that, in the highly urbanized
polity that emerged in the twentieth century, the American legal system
created cities as private corporations powerless to act on their own initiative
and thus dominated precisely with respect to the freedom to begin.
This historical scenario is evidence of a remarkable failure of democracy
across units in an otherwise well-ordered polity. Considered as a unit of
democracy, a city is the only collective body in America that cannot do
something simply because it decides to do it (Frug 1999, 5). In this respect,
cities as units have the normative powers of a democratic entity only at the

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Is Democracy a Means to Global Justice? 103

permission of others, specifically if state governments authorize them to act.


They thus depend on the permission of the state to act, not on the general
democratic authority of its members. Residents of cities therefore lack two
features of full political rights: not only the capability to initiate with respect
to those matters that affect them as city dwellers but also the capacity to
follow through in making decisions with others who possess a similar politi-
cal authority. One solution has been to bypass the current institutional
structure and create horizontal alliances and partnerships among territorially
dispersed metropoles to increase democratic capacity. In this sense, the
system of distribution of political authority fails to achieve the conditions
for non-domination and thus falls below the democratic minimum as the
problems of cities mount and create conditions of injustice. This condition
is made worse by conditions of interdependence with suburbs in a citys
region whose decisions need not take account of the externalities and con-
sequences to the city, especially with regard to the distribution of resources,
such as funding for public schools decided on the basis of property values
in various locales. This distribution of a fundamental public good allows
city units to be subjected to the will of market actors such as developers,
who must be enticed to create housing units or office spaces that might raise
property values generally.
What is the solution to this problem of domination? Perhaps it is simply
a matter of granting cities the missing normative power so that they can
pursue political autonomy. However, if the problem is the relationship be-
tween units, then this solution is partial at best. Something more like trans-
national democracy may also be required so that the previously independent
and dominating units now must function together as a metropolitan or
regional polity. This latter form of democracy begins to address the more
fundamental difficulty: Why does one demos have the authority to dominate
other demoi in the first place? Deeper issues of boundaries, jurisdiction, and
Copyright 2010. UBC Press. All rights reserved.

sovereignty in multi-unit democracies need to be addressed. Besides falling


short of the minimum needed to break the vicious circle of injustice for some
units, a potential regress sets in for plural polities that seek also to be demo-
cratic in each unit. One might create a demos that is the unity of those demoi,
say the demoi of the city and the state in the form of a region, but that region
is one regional demos among others, each with its own relations of inter-
dependence and externality at the level of any particular decision. The po-
tential regress of demoi then has no non-arbitrary, democratic stopping point.
Instead of searching for an optimal and thus authentic sovereign demos, we
will do better to democratically organize the relations among the demoi.
Otherwise, once we grant multiple demoi, each one would inevitably fall
short of democratic criteria to the extent that the citizens of such a federa-
tion do not exercise final control over their agenda (Dahl 1983, 95).
Understood relationally, each unit must have, in Dahls terms, a quasi-open

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104 James Bohman

agenda in which citizens have multiple possibilities for placing items on


the agendas of other units via their memberships.
How might this work? The robust realization of various powers and statuses
has made the member states in the EU more rather than less democratic
because the realization is neither functionally specific nor hierarchical. For
example, the existence of EU-level courts has broadly impacted the legal
recognition of the rights of immigrants by giving them the normative power
to appeal directly to the European Human Rights Court. Indeed, the Euro-
pean Convention on Human Rights already entitles foreigners without
nationality in any EU member state to appeal to the European Human Rights
Court and the EU Court of Justice for the ongoing juridical recognition of
their rights, creating adjudicative institutions that build on the constitutional
traditions of member states, even as they are extended to non-citizens.10 In
addition to the normative powers contained in the legal status of EU citizen-
ship, the multiplication of institutions whose task it is to preserve the condi-
tions of non-domination makes such powers and statuses more robust.
EU-level institutions can thus serve to make these states more democratic.11
The extension of human rights in the EU even to non-citizens shows the
advantages of realizing human rights in differentiated institutions, even as
these powers are a source of further reactive contestation. In the case of
human rights in the EU, their realization at multiple levels enhances the
power of citizens to initiate deliberation by giving each institution a quasi-
open agenda.
The European Union also provides examples of how to institutionalize a
deliberative process non-hierarchically as a solution to the problem of mul-
tiple units. Here too the transnational character of the deliberation is mu-
tually enhancing in ways not available to hierarchical political institutions
typical of modern states. Deliberative opportunities can be distributed dif-
ferently in the absence of non-unitary institutions. As Charles Sabel (Dorf
Copyright 2010. UBC Press. All rights reserved.

and Sabel 1998, 292) has argued, a directly deliberative design incorporates
epistemic innovations and increased capabilities of economic organizations,
in the same way that the regulatory institutions of the New Deal followed
the innovative patterns of industrial organization in the centralized mass
production that they attempted to administer and regulate. Roughly, this
kind of organization uses nested and collaborative forms of decision making
based on highly dispersed collaborative processes of jointly defining problems
and setting goals an approach already typical in many large firms with
dispersed sites of production. One such process is found in the use of the
Open Method of Co-Ordination (OMC) for many different policies (e.g.,
unemployment or poverty reduction) within the EU and is best described
as a decentralized specification of standards, disciplined by systematic
comparison (Sabel and Cohen 1998, 366).12 In this process, citizens in

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Is Democracy a Means to Global Justice? 105

France, Greece, and elsewhere deliberate as publics about policies simultan-


eously with EU citizens at different locations.
The features of the deliberative process promoted by the OMC are quite
different from simple delegation. First, the decisions so produced do not take
the form of a uniform policy that governs all. Nonetheless, the OMC promotes
a great deal of interaction both within EU organizations and across sites and
locations, so that solutions to problems generated by other deliberators can
provide alternatives or be used as premises for the deliberations of others.
Second, a shared normative framework established by initial goals and bench-
marks structures the deliberation in each site and at each level, and the process
of their application requires new deliberations at various levels of scale. At
all levels, citizens can introduce concerns and issues based on local knowledge
of problems, even as they are informed by the diverse solutions and outcomes
of other planning and design bodies. This sort of distributive process concerns
the deliberative division of labour, which takes advantage of the diverse
circumstances and competences of various groups. Thus, although these
publics are highly dispersed and distributed, various levels of deliberation
permit public testing and correction, even if they do not hierarchically over-
ride decisions at lower levels. The role of hierarchy here is to apply agreed
on standards, often requiring lower units to begin their deliberative processes
over again when they fail to consider important alternatives.
There is a second and perhaps deeper difficulty that makes this regress
unstoppable: it is not resolved by insisting that each demos must have ultim-
ate control over its agenda; rather, it has to do with how many democratic
procedures assume that boundaries are simply given. Borders of all kinds,
including jurisdictional ones, are then exogenous to democratic criteria, and
thus conflicts over borders have no democratic resolution. As Dahl (1983,
103) puts it, The criteria of the democratic process presuppose the rightful-
ness of the unit itself. If we appeal to an independent standard such as
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human rights to resolve the issue of borders, then borders become entirely
contingent on past circumstances of injustice rather than promoting the
democratic minimum.13 For example, secession may indeed, according to
this standard, make the boundaries more just, but it does not necessarily
make the polity a better means to justice. According to the democratic cri-
terion I have developed here, it must do both, and that is most likely in
cases where contests for sovereignty are not all-or-nothing affairs that can
lead to reproducing new injustices and democratic domination. The refer-
ence to such a criterion makes judgments less dependent on large-scale and
unavoidably indeterminate consequentialist arguments about producing
the greatest overall justice in the long term. The point is rather to promote
justice through the democratic minimum. In the next section, I argue that
the regress of demoi gives us good reason to think that a transnational

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106 James Bohman

democracy, a democracy across borders, is the best way to promote human


political rights and the democratic minimum.

Democracy, Domination, and the Rule of Law


My argument to this point has been republican. I have emphasized not only
that domination is not solved by democratic states but also that a trans-
national democratic order is necessary if democracy is not to be undermined
at home by domination abroad, often under the guise of security. Given the
current set of arrangements, then, we would expect that the democratic
circle remains self-defeating at home, and vicious in the international arena,
given the lack of citizen deliberation in this latter arena. But as the examples
in the previous section have shown, we have at least one feasible trans-
national polity in existence the EU, with its dispersed and overlapping
forms of deliberation. Could the distribution of universal political rights as
a kind of universal citizenship create the conditions for the democratic
minimum across borders?
In the EU, the problem of democratic domination is not solved directly
by appeal to the rule of law, understood as the best way to resolve the problem
of the arbitrary use of political and legal power. The problem is endogenous
to its novel yet incomplete political form. It is the problem of juridification
that is, the effective use of law as an integrating and regulatory instrument
for market integration. Under these conditions, constitutionalism has a
different objective than the elimination of tyranny: that is, domination as
subordination to the arbitrary will of an individual or group. Its objective
is to eliminate legal domination, the use of law to impose a cooperative
scheme on others without their ability to influence its terms. Democracy is
the solution to the problem of juridification precisely because it permits the
authorization and amendment of a cooperative scheme from within. Legal
domination is distinct from tyranny also in the sense that it is not global;
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it may be specific to some particular area of authority that is immune to


democratic influence. Although not unique to the particular political form
of the EU, such domination cannot be overcome by simply creating repre-
sentative legislative institutions.
Juridification denotes the tendency toward increasing expansion of law
and law-like methods of formal rules and adjudication to new domains of
social life. As Habermas (1988, 356ff.) argues, the use of law in this context
has the consequence that many social relations and informally regulated
domains of social life become formally organized, with the consequence
that they are increasingly opened up to the state and the market. As a long-
term trend in modern societies, juridification has taken place until recently
by means of the territorial state. More and more areas of economic life and
transaction are being juridified in various ways. With the emergence of
institutions that regulate global trade and capital such as the WTO, NAFTA,

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Is Democracy a Means to Global Justice? 107

and certain aspects of the EU, juridification has now become a global phe-
nomenon. Certainly, the EU is advanced in the replacement of state forms
of juridification given that an ever larger portion of legal policy in the EU
derives from community directives and intergovernmental proceedings
(Habermas 2001b, 5-6). This supranational form of juridification is based on
the doctrines of direct effect and the legal supremacy of EU law over national
law; other regulatory institutions such as the WTO have the same effect of
creating a system of obligations for individuals, states, and corporations, all
the while imposing a scheme of global economic co-operation that bypasses
the democratic mechanisms of the representative constitutional state (Tully
2001a, 5ff.; see also Bohman 1996, Chapter 4).
As a corrective to this process, republicans thought of the rule of law as
an essential condition for non-domination: a just government is the rule
of law and not men, so that any just political community aims at freedom
by the laws, and not freedom from the law (Pettit 1997). Given the familiar
constraints of publicity, non-retrospectivity, and generality, the rule of law
at best promotes justice in the sense of Rawlss justice as regularity (Rawls
1971, 56-58). As Rawls, Hart, and others have pointed out, justice as regular-
ity is consistent with great iniquity and may even regularize forms of
domination. The practical effects of democracy are not directly tied to more
effective administrative institutions or even to the consistent application of
the formal rule of law, both of which democracy may achieve. As Sen (1986,
165-66) notes, there are limits to legality: Other relevant factors, for example
market forces, can be seen as operating through a system of legal relations
(in which ownership is understood in rights, contractual obligations, legal
exchanges, etc.). In many cases, the law stands between food availability
and food entitlement. Starvation deaths can reflect legality with a ven-
geance. In this sense, the presence of famine must also be explained politic-
ally via the operation of social norms conjoined with lack of effective social
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freedom of citizens with regard to their content. The deplorable treatment


of Native populations in famines caused by colonial administrators is often
due to domination, manifested in their lack of substantive freedoms such
as free expression or political participation. Thus, the rule of law, if it is to
be deliberative, must be understood in a more political than formal sense.
Tied to the right to have rights or the basic status of membership, this re-
publican understanding of the rule of law must be sufficient to establish the
democratic minimum. Contrary to Hart and Rawls, it must provide the basis
for avoiding great iniquities but must be constitutive of civic freedom. As
Bellamy (2001, 29) puts it, citizenship so conceived operates as the right
to have right and not as a pre-given set of rights removed from the political
process. But what sort of status is the right to have rights?
We can approach this question through a key republican passage in the
Metaphysics of Morals. Kant (1996, section 6.3) argues that a just political

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108 James Bohman

order is based on a universal right to right that applies to all persons. The
turn to cosmopolitanism comes as an answer to the question of whose
freedom is important in creating a just legal order. The only answer is all
persons, so that everyone has a second-order right or, as Hffe (2002, 121)
put it, the right to be reckoned with in this legal capacity and to integration
in the community of persons living in a legal form. It is thus a universal
right to legal standing or membership, a right to have rights in Arendts
terms (Arendt 1976, 176). Without this status, Kant (1996, 241) argues, hu-
man beings would be persons without personality, beings who have only
duties and no rights, and thus slaves or serfs and dominated by others
who have the power to assign those duties, or rightless persons who are the
victims of severe political violence. Thus, we can avoid the great evil of
domination only if citizenship status makes it possible for us not simply to
have duties imposed on us and thus to be free in the sense of having rights
and claims to resist the imposition of duties. Rather, it is the distinctly nor-
mative power to change the circumstances and terms of political life, as long
as others have the same status and powers. It is this capability that enables
citizens to avoid the great ills of modern political life. We can understand
human rights as fundamentally concerned with basic freedoms, including
rights against tyranny and domination. These basic freedoms are justified
negatively and positively as necessary conditions for avoiding great harms
such as domination and destitution on the one hand and for living a worth-
while human life (well-being freedom in Sens [1995] terms) on the other.
Membership status of this sort, understood as the right to have rights, is thus
the most basic of the basic human freedoms. For an initial clarification of this
idea, I can do no better than quote from the Universal Declaration of Human
Rights: Everyone is entitled to a social and international order in which the
rights and freedoms set forth in this Declaration can be fully realized (UN
General Assembly 1948, Article 28). Such a social and international order is
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one in which the basic status that enables anyone to make claims to right and
justice is realized and effective. Thus, the empire of law is not simply the rule
by law but also a form of rule in which this fundamental status and basic
freedom is robustly realized for individuals.
What would it mean to transnationally institute such a rule of law? The
EU once again provides a good starting point. Solving the problem of legal
domination or juridification in the EU requires more than simply giving the
European Parliament (EP) more powers, since this constitutional act will not
suddenly constitute a demos or unitary public sphere. A more differentiated
structure of institutions and procedures is needed if the EU is to democratic-
ally solve the problem of legal domination. In this respect, the EP could play
a much greater role than it currently does but only with regard to specific
powers related to reflexively implementing a new and non-hierarchical

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Is Democracy a Means to Global Justice? 109

transnational framework. I have already mentioned two possible features of


such a system: overlapping institutional arrangements that protect and real-
ize the status of citizenship, and the use of directly deliberative institutions
that would give citizens multiple opportunities to exercise their civic free-
doms at various levels. Thus, as in the case of the domination of cities, the
goal is democracy across demoi at various levels of aggregation that make the
power to initiate deliberation more robust. Finally, and perhaps most im-
portantly, interlocking levels and sites for deliberation can become a system
of checks and balances (Pogge 1992). Such checks and balances are perhaps
the most important institutional advantage of multilevel democratic systems.
Such systems permit access to influence from a variety of organized publics.
Moreover, the structural differentiation of a transnational polity would fulfill
both the liberal protective function for human rights and the deliberative
function in maintaining the democratic minimum across the polity as a
whole. Such a robust right to have rights would then enable citizens to avoid
the great evils of modern social life that result from political domination
and the absence of civic freedom.
Thus, with regard to the effective exercise of the normative powers and
rights needed to resist domination, we should prefer a dense network of
social relationships and overlapping and interlocking institutions that cut
across various porous borders. Because many current borders do not promote
justice, it is hard to see how justice can be democratically achieved. Breaking
such a vicious circle requires not a borderless world but realization of the
democratic minimum across democratic polities. Such polities would then
be better equipped to democratically deal with complex and volatile issues
of global justice, including issues of global warming, extreme poverty and
destitution, and new forms of political violence.
It might be objected that such a constitutive conception of the rule of law
is too strong to be realized beyond the context of bounded political com-
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munities. However, most constitutional democracies already have this re-


publican feature in that they permit changes not only in the laws but also
in the constitutional order itself. This reflexivity not only manifests the pos-
session of the legal status of a free citizen but also defines the active capabil-
ities and powers that make citizens constitutively free. Besides problems with
this non-normative definition of domination that make it difficult to see the
constitutive character of the rule of law, contemporary republicanism lacks
the idea of shared liberty as the basis for both deliberative democracy and
freedom from domination. Without this kind of liberty, citizens can domin-
ate non-citizens and thus be insecure in their own non-domination. Republics
need to heed Senecas cosmopolitan injunction never to dominate others if
they themselves are to honour their constitutive commitments to non-
domination as a shared freedom.

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110 James Bohman

Conclusion: Realizing Transnational Democracy


The world we live in is now more complex and interdependent if still highly
uneven with regard to the distribution of resources. For the past two centur-
ies, from the chartist movement for universal suffrage forward, democracy
has been seen as a means to achieve more justice. Under current conditions,
it can do so only if it is organized transnationally, as a democracy of many
demoi that crosses the borders between them and organizes inquiry and
deliberation into the conditions for ongoing cooperation and collaborative
problem solving. If we ask ourselves whether democratically organized so-
cieties are likely to become more rather than less interdependent, more
rather than less pluralistic and complex, it is clear that democracy entrenches
such conditions even as they exert pressure on its institutions and require
that they be transformed. These very conditions that cut across borders can
promote injustice and even turn a virtuous democratic circle into a vicious
one. In that case, citizens and publics must be able to transform their dem-
ocracies not only for the sake of justice but also so that their institutions
remain democratic.
Two empirical trends suggest that transnational democracy is already a
realistic extension of current political possibilities. The first is the existence
of transnational public spheres and civil society. Such public spheres are
particularly important for creating conditions of communication that enable
the exercise of public influence across diverse and dispersed institutional
structures. The second is the emergence of new institutions with great but
as yet unrealized democratic potential, primarily in the EU and in inter-
national regimes. Taken together, these developments suggest that there are
two primary agents for a possible transnational democratization. Democratic
states comprise the first agent of transformation; they pool their sovereignty
and pursue broadly federal and regional projects of political integration. The
EU exhibits how this possibility may develop beyond initial intentions and
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become a project of polity building. The second agent is less institutional:


it consists of the participants in transnational public spheres and associa-
tions, the citizens who inhabit networks of communication and interaction.
When both agents of transformation are able to coalesce under the right
circumstances, innovative practices of polyarchical and multilevel delib-
eration emerge, which in turn may self-consciously create new publics.
With the consistent application of the republican conceptions of freedom
as non-domination, the right to have rights and the rule of law become
inherently cosmopolitan and not merely contingently so. Given the many
international forms of political authority today that are potential and actual
sources of domination, the republican project must be able to extend the
rule of law to the global level so that it too can be reflexively organized in
terms of the right to rights. Indeed, in a world of extensive social, economic,

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Is Democracy a Means to Global Justice? 111

and political interaction across borders, citizens may come to be dominated


by distant others with whom they are not in a legal community, even as
they are still dominators to others by virtue of imposing duties on them and
limiting the exercise of their normative powers. Because domination and
non-domination are not all-or-nothing properties in such a situation, the
best way to attain a just global legal and political order is not in a unitary
set of institutions, nor is it best conceived of as a consequence of the func-
tional differentiation of institutional labour. Rather, there must be a set of
overlapping and intersecting institutions, each with its own right to rights,
with its own distinctive powers and capabilities. Such an institutionally
differentiated cosmopolitanism continues the strand of republican theory
that has seen all political communities as transnational, pluralistic, and
complex and yet, for that very reason, better able to attain the instrumental
benefits of non-domination and create the institutional space for civic free-
dom. Given that the central condition for non-domination is the democratic
minimum, understood as the capacity to initiate deliberation, realizing
deliberative democracy is a means to global justice.

Notes
1 For a historical account of the development of the different generations of rights from
individual liberties to political rights to social rights, see Marshall (1950).
2 On the first, see Sen (1986); on the second, see, among others, Doyle (1983a and 1983b).
3 See Young (2002, Chapter 1). For a range of accounts that see deepening democracy in
terms of new forms of participation, see Fung and Wright (2003).
4 For Buchanan and Pettit, the democratic minimum (or its conceptual equivalent) is tied to
the accountability of authority or the tracking of public interests. On tracking, see Pettit
(1997, 88). On accountability understood as a democratic minimum for protecting human
rights, see Buchanan (2004, 146). These democratic criteria are too weak and could be
fulfilled even in the presence of domination and in the absence of the ability to initiate
claims in deliberation.
5 On non-ideal theory and the issue of non-compliance, see Rawls (1999, 5).
6 See Berlin (1969, 129):
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Just as a democracy may, in fact, deprive the individual citizen of a great many liberties
which he might have in some other form of society, so it is perfectly conceivable that
a liberal-minded despot would allow his subjects a large measure of personal freedom.
The despot who leaves his subjects a wide area of liberty may be unjust, or encourage
the wildest inequalities, care little for order, or virtue, or knowledge; but provided he
does not curb their liberty, or at least curbs it less than may other regimes, he meets
with Mills specification [of liberty].
Notice that democracy need not be judged just because it would equalize or maximize all
forms of liberty. Political equality developed in terms of non-domination is a threshold
concept; the threshold would not be met when some have so many more political capabili-
ties and resources than others so as not to require cooperation with all citizens.
7 Besides Sens (1986) work on capability failure, see Thomas Pogges (2002) treatment of
extreme destitution as the violation of human rights.
8 See Pagden (1995, 190ff.). For republican federalists, the creation of stable international
relations and of successful commercial networks both now regarded as prime moral objec-
tives of government could only ever be the product of political liberty (190).

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112 James Bohman

9 As Pagden put it in Lords of All the World, the Enlightenment was, perhaps more than has
been recognized, the product of a world which was ridding itself of its first, but by no means,
alas, its last imperial legacy (1995, 200).
10 Joseph Weiler (1998, 719) points to the case of Gayusuz v. Austria that went to the European
Court of Human Rights and led to the extension of social security benefits to third-country
nationals.
11 On the democratizing role of the EU with respect to human rights, see Bowman (2006).
On the rights of immigrants to political participation in the EU on republican grounds, see
Honohan (2002).
12 For a more direct application to the EU, see Cohen and Sabel (2004, 366-85). My description
of the OMC as a deliberative procedure owes much to their account.
13 Such a historical approach is defended by Buchanan (2004, Chapter 5); this argument could
be further developed with a different account of the democratic minimum, but as it stands
it only partially fulfills the necessary conditions for making a multi-unit polity democratic
enough to be a means to justice.

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Part 3
Deliberative Democracy and
Indigenous Peoples
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6
Deliberative Democracy and
the Politics of Reconciliation
Duncan Ivison

The problem of historical injustice presents a deep challenge to the aspira-


tions of deliberative democrats, especially to those deliberative activists
who seek to advance deliberation in deeply unjust circumstances (Fung 2005,
399). But the debate over historical injustice can itself benefit from taking
a democratic turn. Much of the literature is dominated by arguments over
historical entitlement theories of justice, or by a legalistic focus on the pos-
sibilities for compensation and reparation.1 That much of it is deeply skeptical
as well is no surprise given that focus. But what is striking about actual
debates over historical injustice in the world today is their intensely political
character, and this aspect needs to be theorized much more explicitly when
thinking about the nature and consequences of historical injustice. One
crucial aspect of political disagreement, as opposed to moral disagreement,
is that it is not just the force of good reasons at issue but also the application
of force itself, especially by the state. The conclusion of a political delibera-
tion does not necessarily indicate that the other side is wrong, only that it
has lost (Williams 2005, 13, 77-79).
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Many countries are struggling with the legacies of past injustice at the
same time as they are undergoing democratization. This aspect has been
well discussed in a number of places, including in the literature on tran-
sitional justice, in which countries emerging from authoritarian rule and/
or civil war struggle with the legacy of gross injustice as they design new
institutions and try to forge new social and political norms (Hayner 2001;
Elster 2004; Kutz 2004). But the problem of historical injustice also haunts
well-established liberal democratic societies, as in the case of the legacy of
slavery in the United States or the situation of indigenous peoples in North
and South America and Australasia. Do the resources of deliberative demo-
cratic theory offer a distinctive approach to these challenges? What does
the problem of historical injustice reveal about the nature of deliberative
democracy?

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116 Duncan Ivison

I want to look at these questions by considering the history of a reconcilia-


tion process that took place in Australia between 1991 and 2001. This process
was a response to important political and legal developments in relation to
indigenous peoples land rights, among other issues. It was officially inaugur-
ated by a specific act of Parliament, but its roots lie in social and political
activism that preceded it, and it spilled over into much wider discourses and
activities in the broader civil society. Although the official legislative process
finished inconclusively, the language of reconciliation remains a way to
articulate aspirations for relations between indigenous communities and the
state as well as between indigenous and non-indigenous peoples more gener-
ally. After the election of a new government in 2008, Prime Minister Kevin
Rudds first parliamentary speech was to make an Apology to Australias
Indigenous Peoples and appeal to the idea of reconciliation as a core value
of our nation (Rudd 2008, 2). Similar steps have been taken in Canada.2
Reconciliation is often linked to the idea of forgiveness, to the idea of a
cancellation of enmity or estrangement by the perpetrators and benefici-
aries of past injustice who acknowledge their collective responsibility for
wrongdoing (Bhargava 2000, 60). It is also linked to the idea of restoring
social harmony through forgiveness. However, I do not think forgiveness is
an appropriate or achievable goal for a state to seek from the victims of
historical injustice or their descendants. And whatever the vision of social
harmony, it cannot be premised on the acceptance of a comprehensive moral
ideal. Democratic pluralism entails deep disagreement over what an appro-
priate moral conception of social harmony would entail. Instead, democratic
reconciliation should aim at promoting the conditions in which the legacy
of historical injustice is not allowed to distort the capacities of present and
future generations to lead decent lives.
Much has recently been written about truth and reconciliation commis-
sions and their role in promoting a peaceful transition to democratic self-
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government (e.g., Hayner 2001; Rotberg and Thompson 2000). But the
Australian case is different since it is not a case of transitional justice per se.
It allows us to test some of the claims deliberative democrats often make
with regard to how we should address deep structural injustices. It offers a
glimpse of a mature liberal democracy struggling to make sense of a past
and what, if anything, justice demands in light of it. As Judith Shklar (1990)
points out, it is often more fruitful to start with injustice as opposed to ideal
justice when trying to make sense of what liberal justice actually entails. In
this chapter, I begin with historical injustice as a way of thinking about what
deliberative democracy might actually entail.
In much of the recent work on responsibility for past injustice, emphasis
is placed on the importance of what Thomas McCarthy calls the politics
of memory (2002). Given the difficulties of establishing liability for past
injustices in the present, the idea is to shift to more collective and diffuse

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Deliberative Democracy and the Politics of Reconciliation 117

conceptions of responsibility and especially to the language of civic or


political responsibility. In fact, many argue that the language of liability in
general, and a focus on reparations in particular, is misplaced. The worry is
that it is too difficult and divisive to establish meaningful responsibility for
past injustices and too reactive and backward looking (Elster 2004; Waldron
2002b). Part of the problem is the difficulty of undoing the kinds of harms
that are at issue: How do you undo the effects of slavery, colonialism, ra-
cism, or genocide? Although there have been impressive attempts to justify
reparations, and indeed extensive schemes of reparation have been estab-
lished in various countries (see Posner and Vermeule 2003), many political
and legal theorists remain skeptical. But alongside and intertwined in these
debates are the discourses of restorative justice and reconciliation. Here the
idea is that addressing historical injustice is less a matter of retribution or
reparation and more a matter of promoting other valuable ends, such as
non-humiliation, autonomy, freedom as non-domination, civic harmony,
or democracy. Without taking a position on the ultimate justifiability of
reparations, I focus here on the idea of political reconciliation as a form of
the politics of memory and on its relation to deliberative democracy.

Democracy and Justice


Liberals should seek distributive outcomes that are just, which entails (very
generally) an equal distribution of resources or capabilities such that indi-
viduals are able to live decent lives and effectively contest those relations of
power that act on their most important interests.
But liberals should also be concerned with the context within which pat-
terns of distribution operate, that is, with the deeper structural features and
relations of power social, economic, cultural, historical, political that
shape and suffuse those patterns. Social and political relations can never be
free of relations of power but should aim to be non-dominating.3
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One way of bringing these two concerns together is to argue for democratic
justice: that justice and democracy, although distinct, are mutually implicat-
ing. There are differences between legitimacy, a procedural concept, and
justice, a substantive concept, but they are porous. The notion of democratic
legitimacy must then be spelled out. There are obviously thicker and thin-
ner ways of doing so. I will offer only the most basic account here: an
outcome or distribution is legitimate if and only if it can receive the informed
assent of (or be justifiable to) all those whose basic interests are significantly
affected by the law, rule, or institution in question. Or, to put it in a slightly
different way, that all those affected by the law or policy have had a chance
to contest the proposal, to ensure that their politically avowable, perceived
interests are not just ignored and flouted but treated equally in the course
of collective decision making (Pettit 1999, 178-79). But this ideal raises still
more questions. What constitutes informed assent, justifiability, or an

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118 Duncan Ivison

appropriate level of contestation? Where should we look for such assent or


contestation (in legislatures, courts, civil society)? It also raises the spectre
of circularity and a variation on Rousseaus (1968) paradox: for a democracy
to promote justice, it must already be just. Deliberative democracy is often
thought to provide a way of making sense of this paradox.
I will assume that there is some connection between justice and democracy.
They arent equivalent, but they are closely related (Dowding, Goodin, and
Pateman 2005). Democratic societies can be deeply unjust, and the presence
of democratic arrangements is not sufficient for just outcomes. Game theor-
ists studying legislatures have taught us that collective decision making in
public institutions often generates perverse and arbitrary results. Empirical
theorists of democracy, in general, have sowed deep skepticism about its
capacity to promote the outcomes sought by liberals committed to social
justice.4 But equally, it would be wrong to infer that democracy and justice
are therefore fundamentally contradictory. Democratic intuitions play an
important role in most contemporary theories of justice as well as in our
everyday intuitions about justice.
Democratic commitments are prefigured in our convictions about liberal
justice in a number of ways. First, a commitment to equality to the equal
worth of persons or to the Kantian idea of treating someone always as an
end and never as a means lends support (albeit inconclusively) to the
justification of democratic institutions. To deny people the right to partici-
pate in the shaping of those laws and rules that affect their most important
interests would be to treat them unequally, no matter how benign the non-
democratic authority exercised over them.
Second, a commitment to the equal distribution of basic liberties supports
democratic arrangements insofar as, on just about any account of being
free (whether negative, positive, republican, or otherwise), the ab-
sence of the opportunity to influence the laws and policies that affect your
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most important interests would constitute a dire threat to your freedom.5


Third, even if we were confident about what justice is, it doesnt follow
that it should be imposed. For one thing, we could be wrong. Moreover, it
might well be hard to conclusively show to others that they were wrong
about their conception of justice given something like reasonable disagree-
ment about the good and the right (Rawls 1996). Theorists of justice appeal
to democratic arguments here because they need a story about the legitimacy
of the institutional arrangements that follow from their arguments. In fact,
it is precisely because the nature of justice is unsettled that democracy is
inexorably tied to our thinking about it in various ways. Since disagreement,
not consensus, is an inescapable feature of arriving at the just ordering of
any domain of human interaction, democratic considerations are crucial to
our thinking about justice (Shapiro and Hacker-Cordon 1999; Williams 2002;

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Deliberative Democracy and the Politics of Reconciliation 119

Young 2002). The indeterminacy of justice, in other words, pushes us in


democratic directions. Appealing to local meanings alone about various
practices and goods to discern rules of justice risks entrenching what are for
some, at least, relations of domination (see Walzer 1983). On the other hand,
attempting to specify the abstract conditions under which uncoerced agree-
ment can be achieved on principles of justice risks delivering either too little
or too much. Too little is gained if the conditions remain so abstract that
realizing them in anything approaching real-world conditions is hopeless.
Too much is gained if the conditions are so strong that any form of demo-
cratic discussion about them is rendered moot.

Historical Injustice and Democratic Deliberation


There is a range of arguments purporting to show in what sense we can be
held responsible for the past (see Ivison 2002; Thompson 2002; and Waldron
2002b). When we turn to claims made by indigenous peoples for various
kinds of collective rights, for example, historical injustice arguments loom
large. They arent the only way of justifying these rights, but they are an
important element of any such justification. One general argument goes
something like this:

1 liberal legitimacy depends on being subject to authority for which ad-


equate reasons can be provided;
2 indigenous societies were previously self-governing;
3 indigenous peoples were denied the right to self-government for bad
(i.e., unjustifiable) reasons;
4 many of the disadvantages that indigenous peoples currently suffer from
are related to dispossession and lack of self-government;
5 therefore, indigenous peoples have a justifiable claim to the return of
(some of) their territories and to exercise their rights to self-government,
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consistent with the equal rights of others.

I am not going to assess the ultimate validity of these arguments but will
consider a related problem: even if we agree that historical injustices can
and should be addressed in some way (almost no one thinks that the past
simply doesnt matter), what is the most democratic way of handling disagree-
ments over historical injustice? Theorists committed to democratic justice
will say something like this: the more inclusive the democratic process, the
more likely its outcomes will be legitimate, and hopefully the more likely
they will be just. Is this plausible in the case of disagreements over the causes
and consequences of historical injustice? At the heart of many civil wars
and social conflicts today lie deep disagreements about the past, especially
grievances about perceived past injustices.

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120 Duncan Ivison

It may be true that, strictly speaking, the past is causally out of our reach.
But in another sense, the pasts grip on the present can persist and shape
beliefs and actions. How should the past be represented in public delibera-
tions about justice? Deliberative democrats have sought to decentre delib-
eration in thinking about how spatially dispersed individuals can engage in
mutual deliberation. Something similar may be required in relation to sub-
jects who are, in a sense, temporally dispersed (see Bohman 1998, 2006).
As a way into this problem, consider two general approaches to the prob-
lem of reconciling the claims of cultural or national groups with liberal
justice. Call the first the a priori approach. Here the idea is that we identify
certain basic liberal rights and procedures in advance of any deliberations,
and independent of any possible special relations that we may have as
members of a shared practice or cooperative scheme, and then work our way
out toward accommodating the claims of non-liberal groups. So Aboriginal
self-government may be permissible but only insofar as it is compatible with
the prior commitment to a basic core of liberal rights.
A second approach is the democratic deliberative approach. Here the
idea is that whatever is to count as our core commitments in terms of
basic rights, or the most appropriate distribution of burdens and benefits in
our society, must emerge from the actual but still considered deliberations
of the members of that society. These rights or principles cant be stated in
advance, deduced from ideal speech situations or thought experiments, or
intuited (and then imposed) from between the lines of our most revered
texts.6 Thus, public decisions ought to be responsive to the diverse views on
the right and the good held by citizens, and citizens ought to be able both
directly and indirectly to enter into public discussions and have their views
taken seriously over decisions on matters that affect their most important
interests. Moreover, citizens are assumed to be motivated (at least in part)
to seek public agreement and to be willing to offer reasons others could ac-
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cept or at least not reasonably reject. Some deliberative democrats go further


and suggest that a central purpose of deliberative democracy is, in fact, to
resolve moral disagreement, or at least to economize it, since mere tolera-
tion locks into place moral divisions and makes moral progress difficult
(Gutmann and Thompson 1996, 62-63).
Both of these approaches are committed to the discipline of public reason.
The a priori approach relies on pre-commitment to structure the nature of
public reason. So, for example, in his liberal counterblast against multicul-
turalism, Brian Barry argues that to appeal to cultural identity in arguments
over distributive justice is, in many cases, to [cease] to engage in moral
discourse and therefore isnt a legitimate move in the language game of
public reason (2001, 253). A deliberative approach, on the other hand, es-
chews pre-commitment and allows for more room and thus less constraint
for deliberation to work. In fact, the background constraint consists of the

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Deliberative Democracy and the Politics of Reconciliation 121

value of democracy, which is meant to generate a more open and inclusive


view of public reason.
There are two arguments here, one epistemic, the other normative. First,
we should see inclusive public reason as a resource for democratic delibera-
tion, not as a hindrance, because it contributes to the epistemic conditions
required for collective decision making in complex, multicultural societies
(Young 2002, 81-120). Public discussion that is more inclusive of broader
forms of social experience has a better chance of getting the right answer
to complex social problems. Second, the interpretation of basic political
norms is fair game for contestation because of a commitment to everyone
being given equal standing and having their particular reasons taken ser-
iously. If substantive principles of justice have to be worked out deliberatively,
then the norms governing deliberation itself have to be worked out delib-
eratively as well. Thus, Barrys charge that claims about identity are illegitim-
ate modes of public reason depends on an assumption that there are no
plausible arguments available to link identity-related differences to interests
that might be relevant to a liberal theory of justice. But how can we know
this until we actually engage with the claims being made and the interests
being appealed to? The claims arent self-justifying, to be sure, but nor are
they presumptively false. A commitment to deliberative democracy should
cut against the idea that we can determine a priori which kinds of reasons
count as genuinely public reasons in advance of actual deliberations.7
One way to summarize these different emphases is this: first, public deci-
sions ought to respond only to reasonable views about public action, where
a view is considered reasonable in light of its substantive content; second,
public decisions ought to respond to reasoned or deliberated views, where
those views are said to emerge from a well-ordered deliberative process.
Deliberative democrats often assume that these two approaches converge
(Ferejohn 2000, 77-78), that a specific set of substantively reasonable views
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will emerge from well-ordered deliberative procedures. For example, Amy


Gutmann and Dennis Thompson (1996), despite defending what they call
deliberative democracy, in fact impose very stringent ex ante constraints
of reciprocity, publicity, and accountability on public deliberation so
much so that they are able to provide detailed and substantive answers to
hard questions of public policy currently being debated in American politics.
(In my schema, this looks like an a priori argument masquerading as a de-
liberative one.)

Designing Institutions to Deliberate about the Past


A society struggling to confront the legacy of historical injustice presents a
serious challenge to the defenders of deliberative democracy. It combines
the presence of asymmetrical relations of power with the lack of an effective
framework for genuinely democratic decision making. One set of challenges

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122 Duncan Ivison

involves the kinds of preconditions and precommitments that deliberative


democracy requires and whether or not historical injustice creates any special
problems in establishing these conditions. Another set of challenges con-
cerns how deliberative democracy can be institutionalized, given how the
legacy of historical injustice shapes existing institutions. I will use a case
study from Australia to discuss some aspects of these complicated issues.
Before doing so, let me say a bit more about deliberative democracy and
historical injustice.
Why would deliberative democracy be an attractive ideal in these contexts
as opposed to what I call the a priori approach? Consider two general
arguments.
First, deliberative democracy provides a more consistent approach to the
problem of legitimacy, at least from the perspective of a minority group
scarred by historical injustice. If the basic norms and institutions of society
have to be justified to everyone according to a wide conception of public
reason, then the fact of historical injustice can be made to feature in those
deliberations and be given an opportunity to shape their outcome and
introduce new kinds of reasons into that space. It is not clear that defining
what constitutes the appropriate object and/or idiom of public reason in
advance of the actual deliberations would allow this to happen if, for ex-
ample, identity-related differences or the legitimacy of basic institutions
were off the table. Also, the more aggregative and majoritarian the democratic
procedures, the less likely that minority groups will have their concerns
taken seriously and that public attitudes and beliefs about their concerns
might be changed through ongoing public deliberation. At the least, delib-
erative democracy encourages the achievement of a modicum of mutual
intelligibility between citizens by encouraging them to present their best
reasons for proposing or contesting the norm, practice, or rule at issue. Of
course, intelligibility should not be confused with sociability; understanding
Copyright 2010. UBC Press. All rights reserved.

a claim doesnt mean that you are more likely to accept it. But it is a neces-
sary (not sufficient) step along the way to mutual acceptability.
Now, for some deliberative democrats, this means that we should allow
citizens to appeal to their deeply held beliefs and comprehensive (and not-
so-comprehensive) views to the complex reality of their concrete, lived
existence, as it were in the process of attempting to find common ground
with others. This can be a valuable exercise for a group that has been op-
pressed or dominated or whose way of life has been suppressed or denied as
a result of majority decision making. The idea here is that the parties to a
disagreement have to be clear at least about the point of the preferences or
beliefs that each holds if any meaningful and effective terms of mutual ac-
commodation are to be found (Weinstock 2001). Thus, deliberative democ-
racy is proposed as offering a more satisfactory solution to the problems

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Deliberative Democracy and the Politics of Reconciliation 123

faced by minorities in liberal democracies and establishing the legitimacy of


liberal institutions in contexts of deep moral pluralism and disagreement.
Second, it might be that a deliberative approach provides a greater op-
portunity for a cultural group that has been the victim of historical injustice
to adapt to contemporary circumstances and institutions in their own way.
Simply imposing liberal norms in these contexts might compound the in-
justices they claim to suffer. At the same time, if we value democratic delib-
eration between groups and the state, then we must also care about it
happening within groups. So are we justified in imposing democratic norms
on such a group? The democratic approach would, at the least, force elders
or elites within groups to pay attention to the views of others and hopefully
provide more vulnerable members with tools for making themselves heard
(and, if necessary, various kinds of exit points if disadvantage became en-
trenched). The democratic approach would hopefully emphasize the import-
ance of ongoing dialogue, negotiation, and compromise both within and
between groups. But depending on what we mean by democracy, it might
not entail a wholesale rejection of various social and cultural norms that are
at odds with principles of liberal equality.
Thus, the more democratic a deliberative democrat you are, the more
accommodating you will be (in principle, at least) of these differences and
departures from liberal equality, albeit always subject to the test of the ability
of those affected to contest the validity of those norms. The more liberal
and less democratic, the less comfortable you are in tolerating these imperfect
accommodations (except for purely prudential reasons).
Deliberative democrats are often unclear about how deliberative democracy
can be institutionalized, yet their arguments often depend on institutional
experimentation and redesign (e.g., Benhabib 2002, 184-85). However, one
institutional innovation that has emerged in relation to historical injustice
is establishing a formal method for engaging with that legacy, for example
Copyright 2010. UBC Press. All rights reserved.

by establishing a truth commission or reconciliation process. There are two


general arguments for doing so.
First, establishing such a process allows for conflicting views about the
past to be aired and debated, and thus at least to be acknowledged and faced
up to, even if ultimate resolution seems remote. Second, in divided societies,
such a process helps promote conditions in which various kinds of deep
compromises (Richardson 2002b, 146) can be established, compromises
required to underwrite effective democratic deliberation. If nothing else,
these processes can provide an institutional mechanism for managing dis-
sensus for institutionalizing contestation over the past. Deliberative demo-
crats have been interested in these ideas. Gutmann and Thompson (2000),
for example, have applied the arguments from Democracy and Disagreement
(their 1996 book) to the issues surrounding establishment of the South

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124 Duncan Ivison

African Truth and Reconciliation Commission (TRC). I want to look briefly


at their arguments before turning to my example from Australia.
For Gutmann and Thompson, the moral justification of the TRC rests on
democratic grounds, namely, that it can contribute to the democratization
of society by promoting an economy of moral disagreement about the
past that is, justifying political positions by seeking a rationale that mini-
mizes rejection of the positions that you oppose (1996, 57; 2000, 38). Doing
so encourages finding common ground where it exists and mutual respect
where it does not.8 The TRC can do this as long as it is guided by the principle
of reciprocity, the idea that citizens should try to justify their political
views to each other on grounds that others could accept and treat with re-
spect those who make good-faith efforts to engage in this process of mutual
justification even when disagreement persists. Reciprocity also presupposes
that socioeconomic conditions exist such that adult citizens can genuinely
engage with one another on equal terms. In fact, where these conditions
are absent, Gutmann and Thompson suggest that it is reasonable to use
non-deliberative means to bring them about (1996, 57, 134-36; 2000, 36).
Thus, the justification of the TRC has to be a moral justification, not merely
a prudential or instrumental one, to meet the legitimate concerns of those
victims of apartheid who reject any trade-off between criminal justice and
the end of reconciliation. The reasons offered have to be inclusive and thus
cant depend on a comprehensive moral vision of the good. Nor should the
aim of the TRC be justified in terms of producing a conclusive judgment
about the ultimate meaning or truth of the past. And finally, the principle
of reciprocity should be embodied in the procedures of the commission itself.
For example, appointments should be open to public scrutiny, hearings
should be held in public (where possible), the arguments and viewpoints of
all who appear before it should be taken seriously, and disagreement over its
procedures and findings should be openly admitted rather than papered over.
Copyright 2010. UBC Press. All rights reserved.

Now, the Australian reconciliation process is significantly different from


the South African one in many ways. First, it doesnt involve the establish-
ment of a truth commission, although there were truth-seeking aspects
to its remit. Second, the Australian context is not, strictly speaking, a case
of transitional justice, especially in the sense that South Africa was. Although
it may well have been founded unjustly (most states fall into that category),
Australia has embedded in its public life a set of broadly legitimate rules of
basic procedural justice and fairness enforceable by the state, its agencies,
and the legal system as a whole. It also has a relatively well-developed and
robust civil society. However, from the perspective of its indigenous peoples,
at least as I understand their arguments, many of these background rules
and norms have been shaped and distorted by historical injustice. At various
times, they have been used to deny them equal treatment or to coercively
assimilate them into mainstream society and deny them their political rights.

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Deliberative Democracy and the Politics of Reconciliation 125

And although formal discrimination gradually waned in the second half of


the twentieth century, other forms of discrimination persist, along with
disagreements over land claims, self-government, and continuing social and
economic disadvantage.
So deliberative democracy (and, more precisely, democratic deliberation)
is valuable here to the extent that it embraces a wide conception of public
reason that is sensitive to historical circumstances and to the way in which
arguments are conceived of as reasonable or not in relation to the marginal
status of the group making them (Williams 2000). Thus, it may provide an
attractive way to justify the moral and political benefits of a truth commis-
sion or reconciliation process, as a way to institutionalize more democratic-
ally deliberative forms of politics. But it also faces a number of problems.
The first problem is the persistence of post-deliberative disagreement.
The second problem, especially in contexts concerning indigenous peoples,
is the persistence of what I call the legitimacy problem that is, the con-
tested legitimacy of the institutions and practices used to enforce deliberative
norms and to aggregate post-deliberative collective decisions. This problem
is exacerbated in contexts where perceptions about historical injustice shape
attitudes and beliefs about the basic structure of society, in the Rawlsian sense
of the term.

Case Study: Reconciliation in Australia


I turn now to my case study.9 One of the distinctive features of the settle-
ment of Australia, compared with that of Canada, the United States, or New
Zealand, is that there were almost no treaties struck between indigenous
peoples and the Crown. However, Australia shares the common-law back-
ground against which the jurisprudence of Aboriginal rights has emerged
in Canada and elsewhere in the common-law world. Hence, the lack of
treaties is not significant in terms of the kinds of rights that Aboriginal people
Copyright 2010. UBC Press. All rights reserved.

might be said to possess. The real difference lies in the way that these in-
herent rights have (or have not) been recognized and institutionalized. And
here the absence of treaties or constitutional recognition, and of ongoing
processes of nation-to-nation negotiations in general, is significant.
In the nineteenth century, as settlements expanded and the colonies
became increasingly self-governing (Australia was federated in 1901) and
thus the scale of dispossession increased indigenous people were increas-
ingly marked out both legally and socially for discriminatory treatment.
From the 1840s until well into the 1960s, legislation excluded Aboriginal
people from a whole range of social and citizenship rights, including, of
course, from their land but also from the franchise (extended fully only in
the mid-1960s) as well as from access to a wide range of basic welfare benefits
(e.g., equal pay). Assumptions about the cultural inferiority of indigenous
social orders and their apparent imminent demise also led to state-sponsored

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126 Duncan Ivison

programs that removed half-caste and other indigenous children from


their families in order to save them from their apparently marginal position
within Aboriginal society and to assimilate them into white society. Although
the protection of childrens well-being may have warranted removal in par-
ticular cases, the scale and rationale of the removals indicate that they were
mainly informed by an intention to hasten the demise of what was seen to
be in light of the racially infused conception of British Australian national
identity a culturally distinct and inferior indigenous population.
Beginning in the 1950s and 1960s, many of the most egregious exclusion-
ary provisions began to be removed (although not all: child-removal policies
persisted into the 1970s) as the result of an unstable combination of civil
rights activism and more explicitly assimilationist government policies.
Equal citizenship rights thus had a double-edged connotation in Australia
for indigenous peoples. On the one hand, they led to the removal of the
worst forms of overt racial discrimination from the statute books; on the
other, they were intended as part of a broader policy of cultural and political
assimilation. Moreover, having citizenship rights didnt necessarily mean
benefiting from them given deep-seated racial attitudes and behaviours in
the wider society. And even gaining access to welfare rights had painful
consequences as the transition to a cash economy introduced new forms of
dependency on Commonwealth benefits that disrupted the traditional
subsistence economies of many remote communities often with devastat-
ing results (see Pearson 2001).
Also lacking in the Australian context, unlike elsewhere, were any consti-
tutional rules or norms that provided leverage for indigenous peoples in
their negotiations with the state. An important by-product of the activism
of the 1960s was a referendum (in 1967) amending two exclusionary refer-
ences to Aboriginal people in the Commonwealth constitution (1901). The
actual amendments were relatively minor (the first to clarify federal powers
Copyright 2010. UBC Press. All rights reserved.

to legislate in the interests of Aborigines, the second to include them in the


census), but the campaign around the referendum which was passed over-
whelmingly and the subsequent (rather mythical) social meaning of the
1967 vote brought Aboriginal issues into the mainstream of Australian pol-
itical debate. It also brought an expectation of progressive change, led by
the Commonwealth government.
The momentum of the 1960s carried over into the next two decades in
the form of increasing demands for land rights and improving the social
and economic circumstances of indigenous peoples (see Attwood and Markus
1999). Important petitions demanding comprehensive land rights were
presented in 1963 (the Yirrkala Petition) and again in 1988 (the Barunga
Statement). The first major land rights case of the modern era was in 1971
(Milirrpum and Others v. Nabalco and the Commonwealth of Australia), and,

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Deliberative Democracy and the Politics of Reconciliation 127

although it denied that Aboriginal people had any common-law Native title,
the outcry surrounding that decision generated enormous political pressure
for change. The Labour Partys election in 1972, led by Gough Whitlam,
brought with it an explicit policy of self-determination for Aboriginal and
Torres Strait Islander affairs and set the stage for a new era of policy making.
A royal commission resulted in the landmark Aboriginal Land Rights (North-
ern Territory) Act of 1976, implemented even after the Whitlam government
was dismissed and lost the subsequent election. A new government depart-
ment was created, and many Aboriginal welfare services, until then handled
(unevenly) by the states, were centralized under Commonwealth control.
When the Labour Party came to power again in the early 1980s, it promised
national land rights legislation, but this never eventuated. Labour did create
the Aboriginal and Torres Strait Islander Commission (ATSIC) in 1990, which
was meant to take over the administrative functions of the Department of
Aboriginal Affairs, guided by elected representatives from indigenous com-
munities. However, ATSIC never gained real traction with its intended
constituencies or the government and was ultimately abolished by John
Howards government in the late 1990s.
There were various attempts to launch a campaign for a treaty during this
era, including the establishment of an Aboriginal Tent Embassy in 1972
(which has continued in various forms until today), the establishment of
an Aboriginal Provisional Government, a campaign by the National Ab-
original Conference in 1979, and the important Barunga Statement in 1988.10
A parliamentary committee was charged to look at the whole issue in 1981,
but its final report in 1983 Two Hundred Years Later identified changing
societal attitudes as more important than pursuing a treaty. Out of the ashes
of these campaigns came the establishment of a Council for Aboriginal
Reconciliation (CAR) in 1991 and a ten-year plan to create a bipartisan ap-
proach to Aboriginal affairs.11 The twenty-five members of the council were
Copyright 2010. UBC Press. All rights reserved.

to be split evenly between indigenous and non-indigenous members, and


its work was to focus on reconciliation and nation building, with recom-
mendations toward that end to be made in time for the celebration of the
centenary of federation in 2001.12
This process was given an enormous charge by the High Courts Mabo
decision in 1992, which explicitly acknowledged, for the first time in Aus-
tralian history, the common-law rights of indigenous people to their land.
There could be no escaping dealing with these issues now. In late 1993, the
Keating Labour government passed the Native Title Act (NTA), which rec-
ognized common-law Native title, set up a Native Title Tribunal to mediate
future claims, established a land fund to help purchase lands for those un-
able to make claims (due to the restrictive criteria set out in Mabo and then
in the NTA) and foreshadowed a broad social justice package (which never

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128 Duncan Ivison

arrived). In 1995, the Keating government also established a National In-


quiry into the policy of removing indigenous children from their families,
with a view to (among other things) examine the principles relevant to
determining the justification for compensation for persons of communities
affected by such separation (Terms of Reference [c]). The final report, entitled
Bringing Them Home, was tabled in 1997 and suggested that an apology was
due for Aboriginal children forcibly removed from their families.
But with the election of John Howard and his Liberal government in 1996,
following a highly divisive and often racialized campaign, the momentum
in indigenous policy shifted in another direction. The new government
began amending the NTA in order to constrain Native title and especially
the right and duty to negotiate over land claims. This change was encour-
aged by another important land rights case in 1996 (Wik People v. Queens-
land), which Howard and others suggested had swung the pendulum too far
in favour of indigenous peoples land claims. He also explicitly sought to
distance the reconciliation process from land rights and self-determination,
and he cut the budget of the CAR by almost 25 percent. At the Australian
Reconciliation Convention in 1997, meant to be one of the key public con-
sultation events in the reconciliation program, Howard claimed that recon-
ciliation would not work if one of its central purposes became the
establishment of different systems of accountability and lawful conduct
among the Australians on the basis of their race or any other factor (Grattan
2000). Moreover, the reconciliation process must focus on the future, he
argued, and it must presuppose an overriding and unifying commitment to
Australian institutions. So, instead of a focus on past injustices, it should be
on practical reconciliation, not the politics of symbolism, and on meas-
ures that will improve the daily lives of indigenous people, wherever they
live (Grattan 2000).
The atmosphere was further charged when the National Inquiry into the
Copyright 2010. UBC Press. All rights reserved.

child-removal policies Bringing Them Home was published in 1997 and


Howard explicitly refused to offer a national apology on behalf of the Aus-
tralian government for those policies or consider any form of compensation.
The push for an apology then became tied to the final stages of the work of
the CAR. In its Declaration toward Reconciliation, the council included a
form of apology, but once again Howard rejected it. In August 1999, he
sponsored a parliamentary motion of sincere regret, but it generated even
more acrimony due to the perception that it avoided most of the main issues
at stake. At the ceremony (or corroboree) to mark the end of the official
reconciliation period in May 2000, Howard was heckled during his speech,
and many in the audience stood and turned their backs on him. The final
recommendations of the council included calling for a new constitutional
preamble that acknowledged indigenous peoples as first peoples and called

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Deliberative Democracy and the Politics of Reconciliation 129

for Commonwealth legislation that would begin a process leading to an


agreement or treaty, through which unresolved issues of reconciliation
[could] be resolved (Council for Aboriginal Reconciliation 2000).13 Howard
pointedly disagreed with this recommendation, again arguing that practical
reconciliation was more important than the symbolism of treaties and apolo-
gies. This wasnt surprising, since he had earlier stated (in 1988, while op-
position leader) that it was an absurd proposition that a nation should
make a treaty with its own citizens. Howards government was easily re-
elected in 2001.
Although indigenous Australians appeared generally to support some kind
of formal reconciliation process, there were disagreements about the details.
Some suggested that it needed to be made clear with whom any treaty or
agreement would be made (national groups, local groups, regional groups?)
and whether it suited the interests of urban indigenous people or those in
different parts of the country. Many suggested that the focus on reconcilia-
tion was distraction from hard questions about restitution and sovereignty
a way for whites to assuage their guilt without really having to do anything.
Others suggested that the focus on reconciliation was entirely misplaced
given the terrible social and economic circumstances of most indigenous
people. Noel Pearson, a prominent Aboriginal lawyer and leader from Cape
York, called the demand for treaties and reconciliation a confused quasi-
radicalism in the face of social and economic dysfunction. For Pearson, the
real issues were the consequences of passive welfare and drug and alcohol
abuse, which had led to staggering rates of violence and ill health in indigen-
ous communities all over Australia. As he put it, An apology at this stage
of our national indigenous policy failure would only hide the present lack
of insight and ideas among the Australian progressivist and liberalist middle
class ... It would be like a coat of seventies purple plastic paint on a house
full of white ants (2001). Colonialism may have predisposed indigenous
Copyright 2010. UBC Press. All rights reserved.

people to these afflictions, he argued, but it cannot explain why they con-
tinue to get worse.
So, at the end of the ten-year reconciliation process, the results were mixed.
No deep compromise emerged, nor did a clear plan for one. A half-hearted
attempt at introducing a new constitutional preamble recognizing the special
place of indigenous peoples in Australia was bungled and never campaigned
for by the government.
However, perhaps the deepest and most long-lasting consequences were
the many local reconciliation committees and support groups that sprang
up through the process and that helped generate a sense of commitment
toward reconciliation outside the mainstream political parties. Groups such
as Australians for Reconciliation and Native Title emerged, along with a host
of other local, state, and regional networks, which helped keep the discourse

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130 Duncan Ivison

of reconciliation alive in the background of the public culture. These groups


fed, in part, off the hugely successful bridge walks in support of reconcilia-
tion held in the winter of 2000, which brought hundreds of thousands of
people to the streets in the major capital cities of Australia. A quasi-public
body formed in the aftermath of the official reconciliation process Rec-
onciliation Australia has also worked to support these local initiatives.
Nevertheless, indigenous people continue to suffer from appalling social
and economic disadvantage, a fact that many commentators have seized on
as proof of the failure of the language of self-determination and Aboriginal
rights. Others have drawn precisely the opposite conclusion: just because
genuine self-determination and respect for Aboriginal rights has never been
adequately provided for, it can hardly be said to have failed (Behrendt 2003).
However, even some Aboriginal leaders especially Pearson have increas-
ingly questioned the self-determination agenda, worrying that it has come
at the expense of rebuilding social and personal responsibility and of recon-
structing Aboriginal social orders destroyed by passive welfare and drug and
alcohol abuse. Pearsons critique of passive welfare and the so-called rights
agenda, however, has also included unstinting support for Native title prop-
erty rights.
Debate over reconciliation became paralyzed by disputes over the prac-
tical versus the symbolic forms that it might take. The Howard govern-
ment insisted that apologies and symbolic gestures of reconciliation mattered
less than addressing social and economic disadvantage on the ground.
Despite this focus on the practical, things on the ground continued to get
worse.
However, in a remarkable development, the Howard government launched,
in June 2007, an extensive emergency intervention in indigenous com-
munities in the Northern Territory. Once again, child protection was the
justification and the need to address the rampant violence, sexual abuse,
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and devastating drug and alcohol addiction that were ravaging many com-
munities.14 The intervention, as it came to be known, set off an intense
debate among indigenous and non-indigenous commentators and, although
heavily criticized, received strong support, including from many indigenous
leaders. At the same time, Howard announced that, if re-elected, he would
press for an amendment to the preamble of the Australian constitution
what he called a new Statement of Reconciliation that would formally
recognize the special status of Aboriginal and Torres Strait Islanders as the
first peoples of our nation (2007). He admitted that he had been slow to
appreciate the importance of such gestures, although he made it clear that
he continued to reject the call for any collective national apology for past
injustice and that individual rights and national sovereignty prevail over
group rights (2007). It was clear that Howard was attempting, on the eve
of an election campaign, to address a broader public culture that had become

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Deliberative Democracy and the Politics of Reconciliation 131

increasingly receptive to these ideas, despite his consistent repudiation of


them. The reconciliation process in both its formal and its informal aspects
had clearly contributed to these developments. The opposition leader at the
time, Kevin Rudd, had promised to work with indigenous communities to
come up with an appropriate form of apology and had pledged to address
the shocking gap in health and well-being between indigenous and non-
indigenous communities.
Rudd and Labour were elected, and in his first speech to the new sitting
of Parliament in February 2008 Rudd moved a special motion of apology to
the stolen generations, which included this statement:

To the Stolen Generations, I say the following: as Prime Minister of Australia,


I am sorry. On behalf of the Government of Australia, I am sorry. On behalf
of the Parliament of Australia, I am sorry. And I offer you this apology with-
out qualification. We apologise for the hurt, the pain and suffering we, the
parliament, have caused you by the laws that previous parliaments have
enacted. We apologise for the indignity, the degradation and the humiliation
these laws embodied. We offer this apology to the mothers, the fathers, the
brothers, the sisters, the families and the communities whose lives were
ripped apart by the actions of successive governments under successive
parliaments. In making this apology, I would also like to speak personally
to the members of the Stolen Generation and their families: to those here
today, so many of you; to those listening across the nation from Yuendumu,
in the central west of the Northern Territory, to Yabara, in North Queensland,
and to Pitjantjatjara in South Australia.

Rudd also offered to establish a bipartisan war cabinet on indigenous


policy, chaired by himself and the leader of the opposition, as a means of
overcoming entrenched disadvantage and perceived policy stasis. However,
Copyright 2010. UBC Press. All rights reserved.

the debate over the continuation of the intervention quickly stalled the
spirit of bipartisanship, as the Opposition made it a price of their participa-
tion that the intervention be retained in the form in which they had intro-
duced it while in government.
Many aspects of the intervention are alarming, even if some of the con-
cerns that motivate it are widely shared and equally alarming. Some urgent
measures were clearly needed to protect children from increasing sexual
predation and violence (more police, urgent medical screening, restrictions
on alcohol, etc.). But other measures seemed less relevant to addressing those
particular issues and hinted at broader reform of Aboriginal public policy.
The statute authorizing the intervention suspended the application of the
Racial Discrimination Act to its measures, which included (in addition to
those mentioned above) the compulsory acquisition of Aboriginal lands for
the purpose of granting leases; suspending the permit system that controls

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132 Duncan Ivison

access to Aboriginal lands; quarantining social security payments; and abol-


ishing community welfare programs that were often the only source of
employment in remote communities. The invocation of the language of
emergency in relation to the situation of indigenous peoples is striking;
most of the problems outlined in the justification of the legislation have
been amply documented over many years. Declaring an emergency suspends
the normal operation of the rule of law and grants enormous discretionary
power to the executive. Although it has been justified on the grounds of
restoring (somewhat paradoxically) the rule of law to these communities or
at least some semblance of social order what it also does is short-circuit
the need for consultation and any genuine attempt to justify the relevant
measures to the persons most affected by them.

Conclusion
What can we learn from this case study? What are the advantages and dis-
advantages of deliberative democracy for thinking about how best to manage
and potentially resolve disagreements about historical injustice? It seems
clear that formal, non-electoral processes of acknowledging and investigat-
ing the legacy of historical injustice can contribute to establishing more just
and legitimate relations between indigenous peoples and the state. Formal
processes promote an exchange of views about the past and a process for
evaluating the consequences of those views. They create an alternative de-
liberative space within which disagreements about the past can be worked
out. Yet a robust and active civil sphere provides an important domain for
these kinds of discussions too. We need both. So a formal reconciliation
process can contribute to the conditions in which the inclusive promise of
deliberative democracy can begin to be realized in deeply imperfect circum-
stances. This also contributes to the process of rebuilding trust between
different groups in a society shaped by historical injustice.
Copyright 2010. UBC Press. All rights reserved.

However, my case study also points to limitations and challenges. Even


when good deliberative norms are in place, they wont automatically produce
good outcomes. Moreover, the legitimacy of the reconciliation process de-
pends on the parties accepting the terms of reference and the institutions
on which that process depends. Thus, the origins of the formal rules gov-
erning the institution matter; the informal norms shaping deliberation
matter (i.e., those that govern how people actually behave in deliberating,
deciding, interpreting, and criticizing each other within these institutions);
and the overall distribution of social and economic power matters.
To be more specific, Id like to suggest four tentative hypotheses that
emerge from my example.

1 The legitimacy problem infects any search for reconciliation. If the self-
governing powers of indigenous peoples are inherent and coexist with,

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Deliberative Democracy and the Politics of Reconciliation 133

as opposed to deriving from, the sovereignty of the state, then the terms
on which reconciliation is to be pursued, and indeed what constitutes
reconciliation, matter crucially. Another way to frame this hypothesis
is that political disagreement matters as much as moral disagreement, and
the former is not reducible to the latter. Sometimes this manifests itself
as a clash about ends but just as often about means. Indigenous peoples
and the state may share similar ends, but the legitimacy of the institu-
tions or processes meant to bring them about may be deeply contested.
And legitimacy is a moral and political idea shaped by strategic inter-
action. Formal reconciliation processes can run afoul of this kind of
disagreement. For example, by the end of the official reconciliation
process in Australia, there were at least two distinct views about the aims
of reconciliation. According to the first, the differences between in-
digenous and other Australians should be removed since the relevant
aspects of those differences such as discrimination and persistent social
and economic disadvantage undermine equal citizenship and the sense
of a common destiny. According to the second, reconciliation should
involve removing disadvantage but in part through the enactment of
difference, both as a way of recognizing the distinctive place of indigen-
ous peoples in the diverse public culture of Australia and as a means of
realizing equality. Reconciliation processes can help create deliberative
forums that bring to the surface and vent these disagreements, and that
can be a valuable function, but it wont necessarily resolve them, and
the emotions they generate can persist and complicate democratic pro-
cesses. To put it another way, political reconciliation is best conceived
of as a specific form of structured national conversation or argument,
not a defined terminus. Disagreement about the whole point of recon-
ciliation has been a consistent feature of the Australian experience.
But there are also costs in conceiving of reconciliation in this way.
Copyright 2010. UBC Press. All rights reserved.

Open-ended processes for dealing with historical injustice can sap co-
operative energies and engender resentment when they come to seem
for some like so much wallowing in the past rather than addressing its
consequences. This perception in turn can erode the conditions required
for citizens to be willing to engage in the kinds of reflection and delib-
eration that a reconciliation process requires.

2 Relations of power suffuse deliberation. This is a familiar point but well


worth reiterating. Deliberative norms that promote moral as opposed
to instrumental or strategic deliberation do not thereby insulate those
deliberations from relations of power (broadly construed). Reason and
force are not mutually exclusive. This fact doesnt undermine the role
of deliberation in politics, but it means that there is no easy distinction
between moral argument and political argument, if the distinction

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134 Duncan Ivison

is meant to imply that the giving of reasons is to be distinguished from


the exercise of power.

3 Procedural preconditions should be contestable. Deliberation should aim


to provide room for the parties to arrive at suitable democratic norms
to govern deliberations in light of the historical and practical circum-
stances they face. Given the ambiguous legacy of indigenous peoples
relationship to the state and to liberal citizenship rights, an openness
to negotiation over these norms is crucial to establishing trust in pro-
cesses meant to address historical injustice. Imposing strong ex ante
conditions to do with reciprocity, accountability, and publicity, for
example, risks undermining that openness. A more overtly political and
negotiated approach to deliberative norms is required. Expanding the
scope of democratic contestation creates opportunities for different
voices to be heard including, importantly, within minority cultural
groups themselves while at the same time making agreement more
difficult and therefore bargaining and compromise more likely.
There are risks, as always. The more unstructured deliberation is, the
greater the possibility that more powerful parties can take advantage of
it. Imperfect proceduralism is preferable to pure or perfect proceduralism,
but contestability still matters. This challenge raises a deep issue about
just how democratic deliberative democracy really is or ever could be.

4 Post-deliberative pluralism reintroduces the problem of aggregation and non-


consensual decision making back into deliberative contexts. The reconcilia-
tion process generated a series of post-deliberative preferences, but
they were heterogeneous. So compromise and bargaining remain at the
centre of deliberative politics (Bohman 1998; Ferejohn 2000). Various
solutions to this problem have been proposed. Habermas, and those
Copyright 2010. UBC Press. All rights reserved.

inspired by him, have suggested two-track solutions whereby aggrega-


tion is supplemented by extra-parliamentary networks of subpublics
and counterpublics that help bring about wider cultural and ideational
transformations that feed through to the more formal (stronger)
publics.15 The hope is that the proliferation of decentred public con-
versations helps people develop more reasoned views (e.g., more inclu-
sive, better justified, better informed, etc.) to which legislators will be
moved to respond. Ethical transformation begets legislative (perhaps
even constitutional) change. Coming from the other direction, another
suggestion is that representative institutions should be redesigned so
that more explicit and openly argumentative practices are encouraged
in full public view, which might generate the formation of more inclusive
modes of public reasoning. Electoral reform that enables the expression
of a greater range of alternatives and preferences, and thus encourages

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Deliberative Democracy and the Politics of Reconciliation 135

more negotiation and cooperation across party lines (e.g., proportional


representation), is therefore required. If most people, most of the time,
cannot participate extensively in democratic deliberation, then we need
to find ways of representing diversity within legislative deliberation that
also helps people outside legislatures form more reasoned views.

The Australian case study is interesting in this regard. It was among the
purposes of the reconciliation process that it promote education and aware-
ness about Australias colonial legacy. It also served as a focal point for political
mobilization by indigenous people (although often for competing purposes).
Both of these elements contribute to the deliberative capacities of individual
citizens thinking about these issues for themselves. But this has yet to be
translated into broad support for the specific ends that indigenous peoples
have been pushing forward. In many ways, the debate over Aboriginal
rights remains as divided as ever. The hope is that post-deliberative disagree-
ment is different and more productive than it would be if less deliberation
had taken place. Time will tell.
At the institutional level, note that the Australian Senate is elected accord-
ing to a form of proportional representation (unlike the House of Representa-
tives), and this means that it sometimes includes representatives from minor
parties as well as independents. As a result, the government of the day often
has to negotiate with these groups in order to pass its legislation. These
negotiations and debates can (though not always) broaden the range of
views about the interests at stake and hamper government attempts to rad-
ically alter policies affecting indigenous peoples for dubious political ends.
So, creative institutional design, such as a truth and reconciliation com-
mission, combined with a mixed electoral system, can contribute to a de-
liberative approach to historical injustice. However, the Australian case
demonstrates how quickly the limits of such an approach can be reached,
Copyright 2010. UBC Press. All rights reserved.

especially in relation to the problems outlined in (4) above. Moreover, it is


not clear how the informal norms that help deliberation go well within
these institutions can be sustained over time, especially when the trust that
underpins them is severely strained. Rebuilding trust is crucial to addressing
the legacy of historical injustice. Yet that very legacy is often one of the key
factors undermining the sustainability of trust between minority groups and
the state.

Notes
1 For a survey, see Ivison (2006).
2 In June 2008, the Government of Canada issued its own Statement of Apology to former
students of Indian residential schools. It has also established an Indian Residential Schools
Truth and Reconciliation Commission, to run for five years, which forms part of the negoti-
ated Indian Residential Schools Settlement Agreement reached in September 2007 between
the Government of Canada, churches, the Assembly of First Nations, and other Aboriginal
organizations.

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136 Duncan Ivison

3 See Foucault (1983), Pettit (1999), Shapiro and Hacker-Cordon (1999), and Young (2002).
By domination I mean, roughly, a set of conditions in which people, individually or
collectively, are prevented from acting in such a way as to modify the actions that act on
them. Relations of domination exist when relations of power become fixed or stable such
that, whether directly or indirectly, some are able to control arbitrarily and with relative
certainty and without reciprocation the conduct of others.
4 See the essays in Shapiro and Hacker-Cordon (1999), especially the chapters by Przeworski
and Roemer.
5 What if citizens effective freedom also depends on having an equal distribution of primary
goods or capabilities (as it surely must)? Do our commitments to justice and democracy
match up? Skeptics such as Roemer suggest that democracy often fails to promote the right
kind of equality of condition that liberal theorists of justice prize and not merely for
contingent reasons. See Roemer (1999, 62-68).
6 The two approaches are not mutually exclusive. A pre-commitment to basic rights, includ-
ing rights of free speech, association, and religion, ensures that there will be debate and
deliberation over the interpretation and meaning of those rights. Effective deliberation also
has preconditions since deliberative democrats are not simple majoritarians. Thus, both
Habermas (1996) and Rawls (1996) recognize the interdependency, to differing extents,
between rights and democracy.
7 Barry actually defends deliberative democracy in earlier work (1995), but that argument
sits uneasily with many of the claims he makes in his 2001 book.
8 Here respect is defined as a civic acknowledgement ... [It is] the recognition that others
are our fellow citizens and that we are willing to treat them as such as long as they dem-
onstrate a willingness to reciprocate (Gutmann and Thompson 2000, 39).
9 What follows is a rough sketch in need of much greater historical detail and contextualiza-
tion than is possible here.
10 This petition was presented to Prime Minister Hawke at the annual Barunga indigenous
cultural and sporting festival. He promised to conclude a treaty by 1990, but this never
happened.
11 In fact, the original name of the council was to be the Council for Aboriginal Reconciliation
and Justice, but the reference to justice was thought by Hawkes advisers to be a bit much
and was dropped in the final version.
12 It might be useful to have a sense of some of the official terms of reference of CAR:
(a) to undertake initiatives for the purpose of promoting reconciliation between Aborig-
ines and Torres Strait Islanders and the wider Australian community, focusing in
particular on the local community level;
(b) to promote, by leadership, education and discussion, a deeper understanding by all
Australians of the history, cultures, past dispossession and continuing disadvantage
Copyright 2010. UBC Press. All rights reserved.

of Aborigines and Torres Strait Islanders and of the need to redress that
disadvantage;
(c) to foster an ongoing national commitment to cooperate to address Aboriginal and
Torres Strait Islander disadvantage;
(d) to provide a forum for discussion by all Australians of issues relating to reconciliation
with Aborigines and Torres Strait Islanders and of policies to be adopted by the Com-
monwealth, State, Territory and local governments to promote reconciliation;
(e) to advise the Minister on policies to promote reconciliation between Aborigines and
Torres Strait Islanders and the wider Australian community ... [;]
(g) to consult Aborigines and Torres Strait Islanders and the wider Australian community
on whether reconciliation would be advanced by a formal document or formal docu-
ments of reconciliation;
(h) after that consultation, to report to the Minister on the views of the Aboriginal and
Torres Strait Islanders and of the wider Australian community as to whether such a
document or documents would benefit the Australian community as a whole, and if
the Council considers there would be such a benefit, to make recommendations to
the Minister on the nature and content of, and manner of giving effect to, such a
document or documents. (Government of Australia 1991)

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Deliberative Democracy and the Politics of Reconciliation 137

13 Note that Howard also proposed a new constitutional preamble (drafted by the Australian
poet Les Murray, although he later disavowed any responsibility for the final version), which
included reference to Aboriginal and Torres Strait Islander people: Since time immemorial
our land has been inhabited by Aborigines and Torres Strait Islanders, who are honoured
for their ancient and continuing cultures (Behrendt 2003, 142). The proposed preamble
was criticized by just about everyone on all sides of the debate. It was included in the ref-
erendum on the Australian republic held in November 1999, but the government did not
really campaign for it. Both initiatives failed.
14 See (Government of Australia 2007).
15 Issues Deliberation Australia, in collaboration with a number of Australian universities as
well as James Fishkins Centre for Deliberative Polling, held a deliberative poll on reconcili-
ation in Canberra in February 2001. Their research showed that support for things such as
the significance of reconciliation as a public issue, a formal apology, Native land rights,
compensation for the stolen generations, a treaty, special parliamentary seats, and so on
varied across both pre- and post-deliberative polling. In many cases (but not all), support
for these measures increased after the highly structured and informed deliberation had
occurred, although there were variations in the levels of support across different variables;
see Issues Deliberation Australia (2001). However, it remains an open question what this
kind of ersatz deliberation really shows, as useful as it is to compare with what normally
passes for public opinion (see Goodin 2003, 174). The basic premise behind the approach
is that we substitute deliberation within a subset of the population and deliberation car-
ried out in highly structured conditions for deliberation across the whole. But it is not
clear that, as people change their views within these smaller deliberative forums, they remain
representative of what would happen in the larger group. The possible variations between
different groups of different sizes are enormous, even deliberating over similar issues, just
given the range of contextual circumstances that shapes such deliberations (Goodin 2003,
175-76; cf. Dryzek and List 2003).
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7
Resisting Culture: Seyla Benhabibs
Deliberative Approach to the Politics
of Recognition in Colonial Contexts
Glen Coulthard

Theorists who advocate a politics of difference, fluidity and


hybridity in order to challenge the binaries of essentialism ...
have been outflanked by strategies of power.

Michael Hardt and Antonio Negri (2000, 138)

Over the past forty years, the self-determination efforts and objectives of
Indigenous peoples1 in Canada have increasingly been cast in the language
of recognition recognition of Indigenous cultural/national distinctive-
ness, recognition of a right to exclusive jurisdiction over a defined land base
and populace, recognition of existing state treaty obligations, and so on. As
a result of these on-the-ground struggles, the past fifteen years have witnessed
a proliferation of theoretical activity aimed at fleshing out the ethico-political
significance of Indigenous and other identity-related claims (Taylor 1994;
see also Kymlicka 1995, 1998, 2001; Macklem 2001; and Tully 1995, 2000a).
Subsequently, recognition has come to occupy a central place in the acad-
Copyright 2010. UBC Press. All rights reserved.

emys efforts to comprehend the nature and scope of contestations over


identity and difference in colonial contexts more generally (Tully 1995,
2000a; see also Coulthard 2007; Povinelli 2002; and Royal Commission on
Aboriginal Peoples 1996).
As with most normative shifts in our political horizons, the newfound
importance placed on notions of identity, culture, and recognition
in recent social and political theorizing has met with varying degrees of
resistance (Clifford 2000). Social conservative critics in the West, for ex-
ample, have rallied against the rise of so-called identity politics because of
its perceived threat to majority rule and to the racialized, patriarchal, and
heteronormative status quo that difference-blind majoritarian politics tends
to uphold (Brown 2005). Meanwhile, those situated on the traditional left
have repeatedly expressed their anxiety over what appears to be the exces-
sively insular character of many culture-based, identity-related struggles.

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Resisting Culture: Seyla Benhabibs Deliberative Approach 139

The concern in this case is that the inherently parochial nature of the politics
of recognition is undermining more egalitarian and universal political aspira-
tions, like those directed toward the more equitable distribution of socio-
economic goods (Rorty 1998, 2000; see also Barry 2001). In this context,
writes Nancy Fraser (2003, 22), recognition struggles are serving less to
supplement, complicate and enrich redistribution struggles than to margin-
alize, eclipse and displace them. With regard to the latter claim, insofar as
Indigenous peoples struggles for national recognition are always simultan-
eously struggles for a more equitable distribution of land, political power,
and economic resources (Alfred 1999, 2005; see also Tully 2000b, 2001a,
2004), I take the recognition-as-displacement thesis to be misguided when
applied to Indigenous/settler-state contexts.2 Recently, however, another
problem associated with the recognition paradigm has gained considerable
currency among contemporary political theorists and has frequently been
attributed to the struggles of Indigenous communities. This time the concern
rests with the apparently essentialist and exclusionary conceptions of social
identity that frequently anchor demands for recognition. According to recent
proponents of this position, when claims for recognition are founded on
reified and essentialized notions of collective identity, they run the risk of
sanctioning repressive and non-consensual demands for group conformity
as well as unjust practices of exclusion and marginalization (Benhabib 2002;
see also Fraser and Honneth 2003). Consequently, we are told that, in order
to avoid this potentially authoritarian feature of identity politics, we must
ensure that the various expressions of identification and signification that
underpin demands for recognition such as culture, nationhood, and
tradition remain open-ended and never immune from contestation or
democratic deliberation. Struggles for recognition, in other words, must
begin to reflect the constructed nature of our social identities.
Recognizing that social constructivist approaches to the politics of culture
Copyright 2010. UBC Press. All rights reserved.

and identity encompass a vast range of theoretical and disciplinary perspec-


tives, I focus here more narrowly on the recent work of political theorist
Seyla Benhabib (2002), whose contribution represents what I see as an im-
portant yet problematic attempt to bridge the gap between the insights af-
forded by social constructivist theory and what she views as the deliberative
norms and processes that ought to guide and frame democratic practice. In
doing so, I argue that Benhabibs anti-essentialist critique works in concert
with an imperial feature of her deliberative democratic theory inadvertently
to sanction colonial hierarchies. This can be further broken into two claims.
First, I contend that when examined through the lens of Indigenous peoples
struggles, social constructivist critiques of the politics of recognition not
only tend to overestimate the emancipatory potential of anti-essentialist
political projects but also fail to address the asymmetrical relations of power
that often serve to proliferate exclusionary and authoritarian community

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140 Glen Coulthard

practices to begin with. In this regard, I align myself with a small but grow-
ing number of scholars (Dirlik 2000; see also Clifford 2000; Hardt and Negri
2000; Kompridis 2005; and Scott 2005) who have begun to interrogate
anti-essentialist criticism when uniformly applied to a range of conceptually
distinct and power-laden contexts. Second, and this is directed more
squarely at the deliberative aspect of Benhabibs approach, I contend that
when anti-essentialist theories of cultural identity are projected as a uni-
versal feature of social life a move that Nikolas Kompridis (2005, 320) has
recently termed essentialist anti-essentialism and then used to evaluate
the legitimacy of claims for recognition within and against the uncontested
authority of the colonial state, they can inadvertently sanction the very
types of domination and inequality that both social constructivist and
deliberative democratic projects are supposed to mitigate.

Social Constructivism and Deliberative Democratic Theory


Benhabibs The Claims of Culture: Equality and Diversity in the Global Era (2002)
sets out to establish a model of deliberative democracy capable of accom-
modating universal demands for individual freedom and equality along with
identity-specific demands for the recognition of cultural difference. Accord-
ing to Benhabib (8), the task of those committed to such a project a project
incorporating both multiculturalism and democratic equality should be
to create impartial institutions in the public sphere and civil society where
[the] struggle for recognition of cultural differences and the contestation of
cultural narratives can take place without domination. To accomplish this
task, however, Benhabib insists that we reject claims for recognition founded
on essentialist and therefore potentially authoritarian conceptualizations of
culture and group identity: Intercultural justice between human groups
should be defended in the name of justice and freedom and not of an elusive
preservation of cultures (8). Identity movements that do seek to preserve
Copyright 2010. UBC Press. All rights reserved.

the purity or distinctiveness of cultures, Benhabib boldly asserts, are simply


irreconcilable with both democratic and more basic epistemic considera-
tions (ix).
Benhabib opens her critique by challenging the empirical foundation on
which most contemporary theories of mosaic multiculturalism are based
what she terms the reductionist sociology of culture (2002, 4, 7-8). Quot-
ing Terrance Turner, she contends that advocates of this form of multicul-
turalism often embrace an overly simplistic and neatly delineated conception
of cultural identity, which, when institutionalized in the form of public
policy, risks

essentializing the idea of culture as the property of an ethnic group or race;


it risks reifying cultures as separate entities by over emphasizing the internal
homogeneity of cultures in terms that potentially legitimize repressive

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Resisting Culture: Seyla Benhabibs Deliberative Approach 141

commands for communal conformity; and by treating cultures as badges of


group identity, it tends to fetishize them in ways that put them beyond the
reach of critical analysis. (4)

Beyond potentially legitimizing these repressive practices, Benhabib claims


that the reductionist approach yields a number of other illiberal conse-
quences, including

(1) the drawing of too rigid and firm boundaries around cultural identities;
(2) the acceptance of the need to police these boundaries to regulate in-
ternal membership and authentic life-forms; (3) the privileging of the
continuity and preservation of cultures over time as opposed to their re-
invention, reappropriation, and even subversion; and (4) the legitimation
of culture-controlling elites through a lack of open confrontation with their
cultures inegalitarian and exclusionary practices. (2002, 68)

Against the reductionist approach, Benhabib draws on the work of Homi


Bhabha and others to defend the constructivist view that all cultures con-
stitute fluid systems of meaning and representation that are continually
constructed and reconstructed through complex dialogues and interactions
with other cultures (Benhabib 2002, 184). Cultures are thus posited as
fluid, porous, and contested (184) phenomena which are internally riven
by conflicting narratives (ix). This does not imply, however, that cultures
are unreal or fictional entities: Cultural differences run very deep and are
very real. The imagined boundaries between [cultures] are not phantoms in
deranged minds; [they] can guide human action and behavior as well as any
other cause of human action (7).
Also unlike the reductionist perspective, Benhabib views multicultural
justice not in terms of cultural preservation or autonomy but as the inclu-
Copyright 2010. UBC Press. All rights reserved.

sion of traditionally marginalized groups into a widening democratic


dialogue with the citizenry, cultures, and institutions of the surrounding
society (2002, ix). To facilitate this robust form of inclusion, Benhabib pro-
poses a dual track (ix) model of deliberative democracy that stresses
maximal cultural contestation in the public sphere as well as the institu-
tions and associations of civil society. As long as recognition-based claims
adhere to the constructivist/inclusion paradigm and allow for the contest-
ability of cultural norms, practices, and boundaries in and through the in-
stitutional matrix of civil society and the state, certain forms of legal
pluralism and institutional power sharing through regional and local parlia-
ments can and ought to be accommodated (ix). To ensure that pluralist
institutional arrangements meet this standard, Benhabib proposes a baseline
of three normative conditions (19) that ought to be met by any cultural
group seeking recognition and accommodation.

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142 Glen Coulthard

1 Egalitarian reciprocity. Members of cultural, religious, linguistic, and other


minorities must not, in virtue of their membership status, be entitled
to lesser degrees of civil, political, economic, and cultural rights than
the majority.
2 Voluntary self-ascription. In consociationalist or federative multicultural
societies, an individual must not be automatically assigned to a cultural,
religious, or linguistic group by virtue of his or her birth. An individuals
group membership must permit the most extensive form of self-ascription
and self-identification possible. There will be many cases when such
self-identifications may be contested, but the state should not simply
grant the right to define and control membership to the group at the
expense of the individual; it is desirable at some point in their adult lives
that individuals be asked whether they accept their continuing member-
ship in their cultural communities of origin.
3 Freedom of exit and association. The freedom of the individual to exit the
ascriptive group must be unrestricted, although exit may be accompanied
by the loss of certain kinds of formal and informal privileges. However,
this wish of individuals to remain group members, even while out-
marrying, must not be rejected; accommodations must be found for
intergroup marriages and the children of such marriages.

After outlining these normative requirements, Benhabib concludes that


although cultural groups may not be able to survive as distinct entities
under these conditions, they are nonetheless necessary if legal pluralism
in liberal-democratic states is to achieve the goals of cultural diversity as
well as democratic equality, without compromising the rights of women
and children (2002, 20). Under Benhabibs deliberative model, only de-
mands for recognition that adhere to the above standards and do not deny
the contestability of cultural identities and group boundaries can ensure the
Copyright 2010. UBC Press. All rights reserved.

well-being of individual group members (184). Here the cultural preserva-


tionist impulses of essentialism are clearly portrayed as overly restrictive and
rigid, whereas the inclusive domain of social constructivism is cast as demo-
cratic and emancipatory.

Social Constructivism and Indigenous Self-Determination


At this point, I would like to develop the first claim I made at the outset of
the chapter: that in certain contexts social constructivist positions such as
Benhabibs may not only overestimate the emancipatory potential of anti-
essentialist political projects but may also fail to confront the inegalitarian
social relations that often serve to perpetuate the types of gendered and
exclusionary practices they ought to remedy.
Here I believe that Benhabibs strategic intervention into the current debate
in Canada over the citizenship rights of First Nations women proves useful

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Resisting Culture: Seyla Benhabibs Deliberative Approach 143

in elucidating some of the problems underlying the constructivist approach


when uncritically employed in colonial contexts. Prior to 1985, all First
Nations women who married non-Native men were forced to relinquish
their Indian status under the provisions of the federal governments 1876
Indian Act (Benhabib 2002, 54). As a result, Aboriginal women who married
non-Native men were legally denied benefits commonly associated with
membership in a federally recognized Indian community, including the
right to live on reserve and the right to federally subsidized health and dental
care, postsecondary education, reserve housing, and so on (Lawrence 2004,
54-55). In 1985, the federal government was forced to repeal the provision
of the Indian Act dealing with out-marriages on the ground that it discrimin-
ated against Aboriginal women on the basis of their sex and marital status
(Benhabib 2002, 54; also see Lawrence 2004). Not surprisingly, following
the amendment to the Indian Act (known as Bill C-31), thousands of First
Nations women and their children rightly applied to have their Indian status
reinstated. Since implementation of Bill C-31, however, several First Nations
communities have refused to grant reinstated women access to the rights
and privileges associated with band citizenship on the ground that band
governments have the fundamental right to determine who does and does
not constitute a member of the community (Alfred 1995, 177). To further
complicate matters, many First Nations leaders have employed the language
of self-determination, tradition, and cultural preservation to justify
these sexist and exclusionary practices (Green 2001, 2003).
Under Benhabibs deliberative model, the situation described above is
obviously unacceptable. In fact, one could argue that it provides a textbook
example of why preservationist demands for recognition and national self-
determination should not outweigh the universal rights of individual group
members. Furthermore, it appears to demonstrate how the institutional ac-
commodation of essentialist expressions of cultural identity (e.g., through
Copyright 2010. UBC Press. All rights reserved.

the allocation of self-government rights) can facilitate the further exclusion


and marginalization of a communitys less powerful members, especially
when this form of accommodation is not subject to the norms that guide
deliberative democratic practice or adhere to baseline conditions such as
Benhabibs egalitarian reciprocity, voluntary self-ascription, and freedom of
exit and association. Although I agree with Benhabibs condemnation of
these exclusionary practices as unjust, I nonetheless must challenge her
identification and assessment of the supposed source of these practices: I do
not believe that developing a deliberative institutional order that polices a
more open-ended, fluid, and contestable understanding of cultural identity
can subvert the deeply entrenched relations of power in play here. Put
bluntly, these exclusionary practices are a symptom of a problem rooted in
the colonial relationship itself: a relationship on which the whole state
political, economic, and social structure is predicated.

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144 Glen Coulthard

Like most poststructuralist proponents of social constructivism, Benhabibs


neo-Kantian appropriation of anti-essentialist criticism represents both an
empirical statement about the constructed nature of cultural identities and
a normative project aimed at social transformation.3 Indeed, I would argue
that recognizing the social fact of cultural contestability is a necessary yet
insufficient condition for cultivating what most deliberative democrats posit
as a just democratic order. In other words, what is convenient about the
social constructivist position for the deliberative democratic project is that
it justifies subjecting the cultural to the norms that guide deliberative
conceptions of the political: that is, it renders cultural forms subject to
appropriate processes of public deliberation by free and equal citizens
(Benhabib 2002, 106; see also Deveaux 2005). To be sure, when viewed from
this angle, it appears that the very possibility of cultivating a truly democratic
and emancipatory multicultural politics rests on cultures so-called fluid and
therefore negotiable nature. The problem with this perspective, however, as
scholars such as Hardt and Negri (2000, 137-50) have argued, is that it as-
sumes that the oppressive relations of power being deconstructed operate
in a precise manner. The efficacy of anti-essentialist interventions such as
Benhabibs rests on the assumption that unjust configurations of power are
produced and maintained primarily through the production and naturaliza-
tion of hierarchically ordered binary oppositions based on what appear to
be innate differences between, say, male and female, black and white, gay
and straight, colonizer and colonized. And indeed, in contexts where op-
pressive relations are sustained through these divisions, the affirmation of
hybridity and [the] ambivalences of our cultures and senses of belonging
seem to challenge the binary logic of Self and Other that stands behind
colonialist, sexist, and racist constructions (Hardt and Negri 2000, 139).
But what does this strategic intervention have to say about situations in
which relations of dominance and subordination are not primarily produced
Copyright 2010. UBC Press. All rights reserved.

or sustained through these essentialized, binary divisions?


I ask because, in the context of Indigenous womens struggle for commun-
ity citizenship rights, the binary logic that ought to be at the source of their
marginalization is not readily apparent. There is no doubt that certain seg-
ments of the male Native elite have problematically employed the culturalist
vernacular of tradition and self-preservation to justify their exclusionary
practices, but, as mentioned before, I think that the reification and misuse
of culture in this context are more accurately understood as symptoms rather
than sources of the problem. At issue here is the structure of domination
and inequality that anchors the Canadian states relationship with Indigen-
ous communities, not the production and maintenance of non-negotiable
identity formations. The brutally impoverished psychological, social, and
economic conditions that Indigenous peoples are forced to endure on a daily
basis are appalling. As a recent United Nations report documented, the

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Resisting Culture: Seyla Benhabibs Deliberative Approach 145

economic, social and human indicators of well-being, quality of life and


development are consistently lower among Aboriginal people than other
Canadians. Poverty, infant mortality, unemployment, morbidity, suicide,
criminal detention, children on welfare, women victims of abuse, child
prostitution, are all much higher among Aboriginal people than in any other
sector of Canadian society, whereas educational attainment, health stan-
dards, housing conditions, family income, access to economic opportunity
and to social services are generally lower. (Stavenhagen 2005, 2)

Tragically, these conditions have made it virtually impossible for First


Nations governments to provide an adequate system of support for the
members they have now, let alone thousands of reinstated women and
children. In fact, by thrusting these disadvantaged members into the hands
of communities without rectifying the profound inequality that structures
the relationship between Indigenous peoples and the state, the federal gov-
ernment has simply aggravated the problem and fractured these communities
even further (Monture-Angus 1995, 184; see also Lawrence 2004, 64-84). In
such contexts, I simply do not see how normatively privileging hybrid cul-
tural forms can subvert the colonial power relations at the root of these
unjust practices. To be sure, even if we were to deconstruct and expose the
Native elites self-serving misuse of culture as a means of maintaining their
patriarchal privilege, we would still leave intact the underlying social rela-
tions that prompted the misuse to begin with. In effect, we would be locked
in a vicious circle of essentialist claims making and identity deconstruction,
having to repeatedly deliberate about and unpack problematic identity claims
and practices only to have them resurface in another place and context
because we have failed to undermine the conditions of their production. In
this case, at least, it appears that the underlying structure and logic of
power is largely immune to the liberatory weapons of the postmodernist
Copyright 2010. UBC Press. All rights reserved.

politics of difference (Hardt and Negri 2000, 142).


Mohawk legal theorist Patricia Monture-Angus has expressed similar anx-
ieties. For instance, with reference to the Bill C-31 example used by Benhabib,
Monture-Angus has convincingly argued that any analysis that seeks to
understand and/or combat the sexist use of essentialized notions of culture
and tradition to justify the exclusion of reinstated women and children must
address the colonial context in which these practices play out. Understand-
ing how patriarchy operates in Canada without understanding colonization
is a meaningless endeavor from the perspective of Aboriginal people, writes
Monture-Angus; the Canadian state is the invisible male perpetrator who
unlike Aboriginal men does not have a victim face (1995, 175).
However, instead of developing a political strategy based on an acute
understanding of the complex interrelationship between colonial, state, and
patriarchal forms of domination, organizations such as the Native Womens

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146 Glen Coulthard

Association of Canada (NWAC) have spent their time and energy focusing
primarily on attacking the unconstitutionality of the discriminatory actions
of First Nations governments (Monture-Angus 1995, 181-83).4 Ironically,
however, in the long run this state-centred legal strategy has served to re-
inforce, not undermine, the logic of colonial and patriarchal rule in Native
communities. As Monture-Angus writes, The efforts of Aboriginal women
against the oppression of the Indian Act have only succeeded in achieving
a more equal access to the [colonial] system of band membership and Indian
registration for women previously enfranchised. [But] equal access to op-
pressive laws (colonialism) is not progress (183).

Cultures of Resistance: Tradition as Transformative Strategy


The emancipatory potential of the constructivist paradigm is even less con-
vincing in contexts where Indigenous activists have employed essentialist
notions of tradition and culture in their efforts to transcend the forms of
exploitation and domination they face at the hands of the liberal settler
state. For example, in offering an alternative to the legal strategy adopted
by NWAC noted above, Monture-Angus (1999, 148) proposed that com-
munities approach the question of systemic gender inequality in a manner
that conforms to the cultural understanding of Aboriginal reality. For her
community specifically, doing so would likely involve the critical reconstruc-
tion and reinstitutionalization of precontact cultural values and political
traditions, based on kinship systems within which women traditionally
enjoyed the right to select and even depose chiefs, and had competence in
such matters as land allotment, supervision of field labor, the care of the
treasury, the ordering of feasts and the settlement of disputes (Monture-
Angus 1995, 241). Thus, the concept of kinship relations is an important
key in understanding traditional justice mechanisms and establishing those
relations ... is necessary to restore womens respected position in First Na-
Copyright 2010. UBC Press. All rights reserved.

tions society (241). Mikmaq scholar Bonita Lawrence (2004, 61) has pro-
posed an analogous strategy, arguing that the regeneration of matriarchal
governance structures can go a long way toward repairing the legacy of
having patriarchal relations enforced [in Native communities] for over a
century by the Indian Act. Such an approach stands in marked contrast to
the mainstream womens anti-violence and anti-discrimination movement,
which has too often been reliant on the state and its racist and colonial
legal system (Smith 2005, 5) to challenge the array of oppressive practices
that this system has helped create and maintain. Alternatively, community
activists such as Lawrence insist that Indigenous community members begin
to acknowledge the ways in which their internally exclusionary and sexist
practices relate to and perpetuate colonial domination and then take action
to rectify the situation themselves. For Lawrence and Monture-Angus, it is

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Resisting Culture: Seyla Benhabibs Deliberative Approach 147

through this intersectional, grassroots approach to addressing the complex


problem of colonial-gender relations that Native people must begin the
arduous process of rebuilding healthy and egalitarian relations within their
national communities. Only once this has happened can Indigenous com-
munities conceive of entering into much more powerful relations with the
dominant society (Lawrence 2004, 15). Unfortunately, however, for these
Indigenous feminists there is perhaps nothing more counterproductive than
the tendency of both prescriptive anti-essentialism and liberal democratic
theory to implicate kinship systems, rather than incriminate state-sanctioned
and -supported colonial hierarchies, in the operation of Indigenous gov-
erning and social structures.
Unlike the moderate welfarism that currently frames the horizons of liberal
theories of distributive justice and social democracy, many Indigenous
struggles for self-determination continue to include an incisive critique of
the inherently inegalitarian and exploitative nature of capitalism and its
associated forms of development. In the 1970s, for example, my community,
the Dene Nation of what is now the Northwest Territories of Canada, de-
veloped such a critique of the Norths resource economy and applied it in
our demand for cultural recognition (Dene Nation 1977). The following
statement by Philip Blake to the Mackenzie Valley Pipeline Inquiry is indica-
tive of our general position during this time:

We are threatened with genocide only so that the rich and powerful can
become more rich and powerful ... If our Indian Nation is being destroyed
so that poor people of the world might get a chance to share this worlds
riches, then, as Indian people, I am sure that we would seriously consider
giving up our resources. But do you really expect us to give up our life and
our land so that those few people who are the richest and the most powerful
in the world today can maintain and defend their own immoral position of
Copyright 2010. UBC Press. All rights reserved.

privilege? That is not our way.5

When Blake suggests that, as Indian people, the Dene reject the patho-
logical drive for accumulation that fuels capitalist imperialism, he is basing
this statement on a conception of Dene identity as embedded in an expansive
system of egalitarian and reciprocal relations that encompasses the land and
animals, lakes and rivers, past and future generations, as well as other people
and communities. For many Natives at the time of Blakes testimony, this
relational conception of national identity was non-negotiable; it was viewed
as an essential and constitutive element of what it meant to be Dene. More
than this, it also demanded that we conduct ourselves in accordance with
certain ethical-political norms that stressed egalitarianism, the importance of
sharing, respecting the autonomy of both individuals and collectivities, and

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148 Glen Coulthard

recognizing the obligations that one has not only to other people but also to
the natural world as a whole. It was this culturally rooted and informed place-
based ethics that grounded not only my communitys critique of capitalist
development but also our demand for recognition and self-determination.
A similar ethic can be said to inform the work of a growing number of
todays most prominent Indigenous scholars and activists (Alfred 1999, 2005;
Maracle 1996; Smith 2005). Mohawk political scientist Taiaiake Alfred, for
example, has repeatedly argued that the goal of any traditionally rooted
self-determination struggle ought to be to protect that which constitutes
the heart and soul of Indigenous nations: a set of values that challenge[s]
the homogenizing force of Western liberalism and free-market capitalism;
that honor[s] the autonomy of individual conscience, non-coercive author-
ity, and the deep interconnection between human beings and other elements
of creation (1999, 60). For Alfred, this vision not only is embodied in the
practical philosophies and ethical systems of many of North Americas In-
digenous societies but also flows from a realization that capitalist economics
and liberal delusions of progress have historically served as the engines
of colonial aggression and injustice itself (2005, 133).
The above cases demonstrate how seemingly essentialist notions of trad-
ition and culture, instead of further entrenching or sanctioning exploitative
and authoritarian practices, can inform radical critiques of a host of oppres-
sive power relations. In these contexts, the essentialism/constructivism
dichotomy underlying Benhabibs deliberative approach to cultural accom-
modation where essentialized identities are viewed as reactionary and
crippling and their transgressions as a symbol of creativity and freedom
(Parekh 2000, 150) does not provide a particularly illuminating or con-
structive way to approach the forms of injustice faced by Indigenous peoples
today. James Clifford (2000, 99) has perceptively framed the problem this
way: when constructivist-inspired critiques of identity [are allowed to
Copyright 2010. UBC Press. All rights reserved.

harden] into theoretical dogma, they may dismiss historically adaptive forms
of cultural integrity in the same breath as essentialist assumptions of authen-
ticity. This is especially troubling from the position of subaltern resistance
movements, for which these dominant critiques of essentialism can be
profoundly disempowering, especially when pitted against and tangled up
with claims against colonial law and the state (99).

Social Constructivism, Colonial Domination, and the State


I have suggested that, like many poststructuralist advocates of social con-
structivism, Benhabibs universalist critique of the politics of recognition
represents both a sociological statement about the fragmented and hybrid
nature of cultural identities and a normative project aimed at progressive
social change. However, unlike the many poststructuralist-inspired theorists

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Resisting Culture: Seyla Benhabibs Deliberative Approach 149

who tend to view cultural criticism as a potentially transformative practice


on its own,6 Benhabib moves beyond the realm of deconstructive critique
and applies what she sees as the best insights of social constructivist thought
to the development of a deliberative project capable of accommodating
justifiable demands for cultural recognition without violating individual
claims to equality. Here I think she makes a problematic move: once she
establishes the constructedness of cultural identities as a universal feature
of social life, she proceeds to ground her normative views on what a political
order ought to be, [based] on that universal description (Butler, Laclau, and
iek 2000, 14-15). What should this political order look like? As noted
previously, for Benhabib it should comprise impartial institutions in the
public sphere and civil society where [the] struggle for recognition of cultural
differences and the contestation of cultural narratives can take place without
domination (2002, 8). If group demands for cultural recognition meet this
deliberative standard, then there is no reason why the state should not
provide legal and institutional accommodation for the group in question
(x, 19-20, 184). This, again, is quite different from the standard poststruc-
turalist position, which tends to view the institutionalization of any claim
to universality with suspicion (Butler, Laclau, and iek 2000, 15).
Thus far, my critique has been directed fairly broadly at the imperial im-
plications of what I have characterized as an uncritical normative privileging
of cultural contestability in much anti-essentialist cultural criticism, includ-
ing Benhabibs. Seen from this angle, her deliberative approach appears
problematic only insofar as it has appropriated this uncritical strand of
constructivist thought. In this section, I want to flip the gaze around. That
is, I want to examine more closely the imperial implications of Benhabibs
deliberative democratic model and in doing so show how her social con-
structivist commitments work in concert with this model to reinforce colonial
structures of dominance.
Copyright 2010. UBC Press. All rights reserved.

Stated bluntly, I claim that by employing the so-called social fact of cultural
fluidity, narrativity, and contestability as a standard against which democratic
theorists, judges, policy makers, and the state ought to assess the legitimacy
of claims for recognition, Benhabibs theory potentially sanctions the very
forms of power and discrimination that anti-essentialist democratic projects
are supposed to undercut. First, by placing the burden squarely on the
shoulders of claimants of recognition to prove that their identity movements
do not deny the contestability of cultural practices before they are eligible
for institutional accommodation, Benhabibs model potentially renders
rectifying forms of recognition and redistribution unattainable for Indigen-
ous groups whose cultural expressions do not adhere to this form. Second,
and more problematically, even if Indigenous claims for recognition do man-
age to meet these criteria, her theory leaves uninterrupted the colonial social

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150 Glen Coulthard

and political structure that is assigned the adjudicative role in assessing


recognition claims and enforcing deliberative decisions. This second point
is what Duncan Ivison, in this volume, perceptively refers to as the legit-
imacy problem faced by most deliberative approaches when applied to the
colonial arena. I will discuss these two problems in turn.
As we saw above, in many cases Indigenous peoples struggles for recogni-
tion and self-determination defy the protocols associated with social con-
structivist criticism. As Arif Dirlik has commented:

Not only do [Indigenous struggles] affirm the possibility of a real native


identity, but [they] also assert for the basis of such an identity a native
subjectivity that has survived, depending on location, as many as five cen-
turies of colonialism and cultural disorientation. Not only [do they] believe
in the possibility of recapturing the essence of precolonial Indigenous culture,
but [they] also base this belief on a spirituality that exists outside of historical
time ... In all of these different ways, Indigenous ideology would seem to
provide a textbook case of self-Orientalization. (2000, 207)

We also saw that, in some instances, Indigenous leaders have defended es-
sentialist notions of culture to legitimize the exclusion of disenfranchised
women and children from full participation in the life of the community,
yet in other cases these conceptions have been creatively invoked as a means
of resisting relations of dominance and subordination.
Benhabib, however, focuses solely on the non-democratic and repressive
aspects of essentialist identity formations, and this understanding is subse-
quently reflected in her deliberative approach. The potential problem here,
of course, is that, by theoretically and institutionally privileging recognition
claims that adhere to a negotiable and inclusive conception of culture, it is
unclear which Indigenous claims Benhabibs deliberative model would be
Copyright 2010. UBC Press. All rights reserved.

willing and able to accommodate. For one, almost every Indigenous demand
for recognition that I can think of is couched in the vernacular of cultural
survival, preservation, and autonomy and rightfully so given the
history of genocidal state assimilation policies that Indigenous people and
communities have been forced to endure (Stannard 1992; see also Lawrence
2004 and Smith 2005). My point is this: as it stands, Benhabibs a priori ruling-
out of any remotely essentialist and therefore inherently suspect attachments
to ones culture and traditions would likely deem problematic any Indigen-
ous claim for recognition that took cultural continuity and collective well-
being seriously. Take, for example, any number of claims for recognition
that have emerged in the Canadian context over the past twenty-five years.
Would legal and political accommodation for First Nations that demand
exemption from the Charter of Rights and Freedoms on the ground that it
represents an insidious form of cultural imperialism be acceptable under a

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Resisting Culture: Seyla Benhabibs Deliberative Approach 151

deliberative democratic model (Turpel 1989-90)? What about the implemen-


tation of ceremonial practices (Denis 1997), or traditional justice initiatives
(LaRoque 1997), which appear to clash with liberal norms of individual
freedom and equality? Or what about communities that want to fight the
demoralizing effect of decades of imposed governance through the Indian
Act by revisiting the traditional roles of hereditary chiefs in their national
political institutions? Even though the use of culture and tradition in all of
these examples represents a potentially powerful means of undercutting the
corrosive effects associated with five centuries of colonial governance, all
would likely be unacceptable in a deliberative democracy given the norms
set by Benhabib. In the concluding chapter of The Claims of Culture, Benhabib
recognizes the challenge that Indigenous struggles for self-determination
present to her position. These peoples, she writes, are seeking not to
preserve their language, customs, and culture alone but to attain the integrity
of ways of life greatly at odds with modernity. She continues:

While being greatly sceptical about the chances for survival of these cultural
groups, I think that from the standpoint of deliberative democracy, we need
to create institutions through which members of these communities can
negotiate and debate the future of their own conditions of existence ... As
I have suggested ... the self-determination rights of many of these groups
clash with gender equality norms of the majority culture. [However, if] self-
determination is viewed not simply as the right to be left alone in governing
ones affairs, but is also understood as the right to participate in the larger
community, then the negotiation of these ways of life to accommodate more
egalitarian gender norms becomes possible. (2002, 185)

Leaving aside her colonial invocation of the vanishing race trope, Ben-
habib recognizes the limits of her approach in colonial contexts, but in the
Copyright 2010. UBC Press. All rights reserved.

end she is still unrelenting in her commitment to a conception of democratic


governance that views justice for Indigenous communities in terms of their
greater inclusion in the institutional matrix of the larger settler society.
Indeed, her whole approach appears to suggest that this inclusion is neces-
sary so that Indigenous peoples non-liberal, non-modern cultural norms
and practices remain open to contestation and group deliberation. Indigen-
ous peoples, in other words, require access to the deliberative mechanisms
and democratic institutions of the colonial society for the well-being of
their own citizens. Although Benhabibs proposal may avoid some of the
pitfalls associated with exclusionary group practices, it nonetheless leaves
unscathed the presumption that the colonial state constitutes a legitimate
authority to determine which demands for Indigenous recognition ought
to be accommodated and which ought to be denied (Day 2001). Ironically,
however, the states assumed position in these struggles is itself what is

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152 Glen Coulthard

contested by Indigenous claims for cultural recognition. Also ironic is the


fact that the states assumed authority in these matters is premised on the
profoundly essentialist, indeed racist, understanding that Indigenous peoples
were too uncivilized to constitute equal and self-determining nations when
European powers unilaterally asserted their sovereignty over Native North
America.
Let me elaborate in the Canadian context. When the first Europeans ar-
rived in what is now Canada, survival required that they immediately enter
into political and economic relationships with the diverse, sovereign, and
self-governing Indigenous nations they encountered (Tully 2000a, 419).
Over the following four centuries the relationship between Aboriginal na-
tions and the growing settler society underwent substantial changes, shifting
from mutually beneficial associations ... between equal nations to the
coercive and imposition of a structure of domination (Tully 2000a, 419).
As the settler society grew in numbers and strength, Tully further notes, its
dependence on the technologies and knowledge of Indigenous peoples
began to wane, and the relationship shifted from one premised on peaceful
coexistence and equality between peoples to a colonial relationship in
which Aboriginal peoples and their cultures were treated as unequal and
inferior (419).
Over the past decade, numerous scholars (Alfred 1999; Asch 1999; Macklem
2001; Tully 2000b) have convincingly shown how the conceptualization of
Native peoples as politically and culturally inferior continues to inform
Canadas presumed authority over Indigenous lands and people.7 By de-
picting Indigenous societies as uncivilized, settler nations were able to justify
unilaterally asserting supreme jurisdiction over Indigenous peoples and their
territories because they were deemed too primitive to have governing
institutions with political jurisdiction over lands and citizens (Tully 2000a,
419). In essence, Tully continues, because Indigenous peoples were con-
Copyright 2010. UBC Press. All rights reserved.

sidered so low on the natural scale of social evolution, settler powers felt
justified in claiming North America legally vacant, or terra nullius, and
sovereignty was acquired by the mere fact of discovery (419). As Michael
Asch has pointed out, the Supreme Court of Canada still implicitly and
consistently invokes the terra nullius thesis to justify the unequal distribution
of sovereignty that structures the relationship between Indigenous peoples
and Canada (1984, 1997, 1999, 2002). Thus, even though the courts have
secured an unprecedented degree of protection for Aboriginal cultural
practices within the state, they have consistently refused to challenge the
racist origin of Canadas assumed sovereign authority over Indigenous
peoples and their territories.
If, as I have argued, Benhabibs use of social constructivism represents not
only an empirical statement about the nature of cultural identities but also
a means of undercutting those forms of domination and inequality that she

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Resisting Culture: Seyla Benhabibs Deliberative Approach 153

views as being legitimized through the reification of essentialist and non-


negotiable cultural forms, then her theory has failed to serve its purpose in
the colonial context. In fact, by treating the state as a natural and uncon-
tested arbiter in struggles for recognition or, as Richard Day has put it, by
assuming that the state somehow inherently occupies a pole of universal-
ity, [providing an] appropriate ground for dialogue between [Indigenous
peoples,] ethnic groups, regions, and so on (2000, 222) Benhabibs model
has firmly embedded Indigenous peoples within the structure of domination
that their claims for cultural recognition posit as unjust and illegitimate. As
Dirlik has recently argued, it is through this double manoeuvre namely,
the uncritical and premature positing of cultural in-betweenness as both
a universal and a normative aspect of the human condition that anti-
essentialist democratic projects abandon their transformative potential and
crystallize into a new kind of determinism from which there is no escape
(2000, 205).

Conclusion
To avoid some of the problems that have come to the fore in the preceding
pages, I think it crucial that advocates of anti-essentialist criticism begin to
acknowledge that, as discourses, both constructivist and essentialist articula-
tions of identity can aid in either the maintenance or the subversion of
imperialist configurations of power. In this sense, I am employing discourse
in a straightforwardly Foucaultian manner to refer to the myriad ways in
which the objects of our knowledge are defined and produced through the
languages we employ in our engagement with the world and with others.
Discursive formations, in other words, are not neutral; they construct the
topics and objects of our knowledge; they govern the way that a topic can
be meaningfully talked about and reasoned about. [They also influence] how
ideas are put into practice and used to regulate the conduct of others (Hall
Copyright 2010. UBC Press. All rights reserved.

1997, 44). Just as discursive formations can legitimize certain ways of think-
ing and acting, Stuart Hall elaborates, so too they can profoundly limit and
constrain other ways of talking and conducting ourselves in relation to the
topic or constructing knowledge about it (44). And it is precisely on this
last point that I believe constructivist-inspired projects of deliberative dem-
ocracy such as Benhabibs have failed: in their a priori attack on all essentialist
claims making, they have refused to acknowledge the repressive ways in
which their own discursive interventions have effectively undermined certain
forms of subaltern resistance and have thus unduly constrained the field of
legitimate action for Indigenous peoples in their struggles against colonial
domination.
No discourse of identity should be prematurely cast as either inherently
productive or repressive prior to an engaged consideration of the historical,
political, and socioeconomic contexts and actors involved (Dirlik 2000; see

Deliberative Democracy in Practice, edited by David Kahane, et al., UBC Press, 2010. ProQuest Ebook Central,
http://ebookcentral.proquest.com/lib/uunl/detail.action?docID=3412658.<br>Created from uunl on 2017-11-18 14:47:26.

kahane.indd 153 21/10/2009 7:09:25 PM


154 Glen Coulthard

also Fuss 1989 and Tully 2004). According to Tully, such an approach would