21 DELIBERATION AND DEMOCRATIC LEGITIMACY Joshua Coben In this essay T explore the ideal of a ‘deliberative democracy’! By a deliberative lemoceacy T shall mean, roughly, an association whose affairs are governed by the an account of the value of such an asso: leliberation of its members. f propos 1 ireats democracy itself as 2 fundamental political ideal and nor simply as 1 derivative ideal that can be esplained in terms of the values of fairness or equality ob pespeet. The essay is in theve sections, by seetion 1, [focus on Rawls’s discussion of democ ind uve that discussion both to introduce certain features of the deliberative slemacsacy, and to taise some doubts abour whether their importance is naturally Spiamned itt terns OF the notion of a fair system of social cooperation. In section Hy 1 dcsclup an account ot deliberative democtaey in terms of the notion of an ideal deli enune procedure, The characterization of that procedure provides an abstract model tol-doliberation which links the intuitive ideal of democratic association to a more substantive view of deliberative democracy. Three features of the ideal deliberative procedure figure prominently in the essay. Pitst it helps to account for som juaigcients abut collective devision-making, in particular about the ways cha tive decision-making ought to be different from bargaining, contracting and other markertype mteractions, both in its explicit attention to considerations of the com. non advantage and inthe ways chat that attention helps to form the aims of the participants. Second), it accounts for the common view that the notion of demweratie Losuniatton is tied fo notions of autonomy and the common good. Thitd, the ideal deliberative procedure provides a distinetive structure for addressing institutional ques- tions, And in section EIT of the paper F rely on that distinetive structure in responding tus tau objections to the account of deliberative democracyDELIWERATION AND DEMOCRAFIC LEGITIMACY The ideal at deliberative democracy is a familiar ideal. Aspects of it have been high lighted in recent discussion of the role of republican conceptions of self-government in shaping the American constitutional tradition and contemporary public law.! Ik is represented as well in radical democratic and socialist criticisms of the polities of advanced industrial societies.” And some of its central features are highlighted in Rawls account of democratic polities in a just society, particularly in those parts of his scout that seck to incorporate the “liberty oF the ancients’ and to respond 10 hisical democrats and socialists who argue that ‘the basic hberties may prove to be rarely Formal’. fn the discussion char follows T shall first say something about Rawhs's| remarks on three such features, and ehest consider his explanation of them.* First, ina well-ordered democracy, political debate is organized around alternative ne, in which der conceptions of the public good. So-an ideal pluralist sche politics consists af fair bargaining among groups each of which pursues its particular or pp. 360-1). Citizens and parties operating in the political arena ought nor to “take a narrow or group-interested sectional interest is unsuited to a just society (Rawls 197) standpoint (p. 360). And parties should only be responsive to demands that are ‘argued for openly by reference to a conception of the public good (pp. 226, 472). Publi exp nations and justifications of laws and policies are to be cast in terms of conceptions of must be consistent with the two the common good (coneeptions that, on Rawls view principles af justice) and public deliberation should aim ro work out che details of sueh conceptions and to apply them to particular issues of public policy (p. 362) Second, the ideal of demoeraric order has egalitarian implications that must be satis fied an ways that are nianitest to citizens. The reason is that ina just society political upportunities and pavers must be independent of ceonomic or social position ~ the tical liberties must have a fare value ~and the faet chat they are independent must Be more or fess evident to citizens, Ensuring this manifestly fair value mighty for ample, require public finding of political parties and restrictions on private polit- ical spendingy as well as progressive tax measures that serve to Fimit inequalities of wealth and 10 ensure that the political agenda is not controlled by the interests of 6, 277-8: 1982, pp. micsts might be more stringently eal ‘conomically and socially dominant groups (Rawls 1971, pp. 42-3). In principle these diseributional requit arian than those fixed by the difference principle (1982, p. 43). This is so in part Ieeauise the main point of these measures is nor simply to ensure that democratic poli- tics proceeds under fair conditions, nor only to encourage just legislation, but also to ‘ensure that the equality of ci wanitest and to declare a commitment to that eqiality ‘as the public intention’ (1971, p. 233}, Thivel, democratic polities should be ordered int ways that provide a basis for self respect, that encourage the development of a sense of political competence, and thar MBJOSHUA COHEN Contribute tothe lormation ui a sense of justices it should fix “the foundations for Gisic trtendship and [shape| the ethos of political culture’ (Rawls 1971, p. 234), Thus Ue importa of dkmocratic order is not confined to its role in obstructing the class leynation that can be expected trom systems in which groups are effectively excluded {ron the chansels of political representation and bargaining, In addition, democratic polities should also shape the ways which the n snbers of the soviety understand them selves and their own legitimate interests When properly conducted, then, democratic politics involves public deliberation Jocused on the common geod, requites some Form of manifest equality among, citi- ens and shapes the identity and interests of citizens in ways that conteibute to the formation of a public conception of common good. How does the ide ofa fair system ol social co-operation provide a way to account for the attractiveness and importance ts 3 formal it. The formal argument is that parties in the original of these three features of the deliberative democratic ideal? Rawls su and an informal fine of argum position would choose the principle of participation” with the proviso that the poli ical liberties have their fair value, ‘The three conditions are important because the inuist he satisfied if constitutional arrangements are to ensure participation rights, gear sutee a fair value to those rights, and plausibly produce legislation that encourages a tuir distibution according to the difference principle. Kawlsalwo suggests an informal argument for the ordering of political institutions, avi L shall focus on this informal argument here: Justice as fairness begins with the ide that where common principles are neces: Sary and to everyone's advantage, they are to be worked out from the viewpoine of a suitably defined initial situation of equality in which each person is fairly vpresented. The principle af participation translers thiy notion from the original position co the constitution . [thus] preservling} the equal representation of the original position to the degree that this is feasible, (Rawls 1971, pp. 221-2)!" (Oe. as he puts it elsewhere: “The idea fof the fair value of political liberty] is to incor Lh mirrors porate into the husic structure of society an effective political procedure wh jn that structure the fair representation of persons achieved by the original position’ Los, py 43 emphasis adkied). The suggestion iy that, since we aevepr the intuitive ical of a tair system of co-operation, we should want our political institutions them selves w conform, so far ay it is Feasible, to the requirement that terms of association nt of ‘equal liberties with fair value, rather than arriving ar it indirectly, through a hypo- be worked out ander fair conditions, And so we arrive diteetly at the requiren thetical choice of that requirement under fair conditions. In this informal argument, the original position serves as an abstract model of what fair conditions are, and of 344DELIBERATION AND DEMOCRATIC LEGITIMACY shat ave should strive to mirror in our political institutions, rather than as an initial- choice situation in whieh ative principles for those institutions are selected. Tihink that Rawls is right in wanting to accommodate the three conditions. What I find less plausible is that the three conditions are natural sequences of the ideal of tai ss. Taking the notion of fairness as fundamental, and aiming (as in the informal angen for exampte, political debate ought to be focused on the common good, or why the argument) co model political a on the original position, it is nor clear why, nanitest equality of eitizens iy an important feature of a democratic association. ‘The waist coneeption of democratic polities asa system of bargaining with fair repre- ‘eneatton far all group seems an equally good mirror of the ideal of Fairness. Tine response to this objection is clear enough the conection between the ideal of taimess and the dhrce features of democratic polities depends on psychological and socinlogical assumptions, Those features do not follow directly trom the ideal of a fair systems of co-operation, or trom that ideal as it is modelled an the original position, Rather, we arrive 1 them when we consider what is required 10 preserve fair arrange nents and 10 achieve fair outcomes. For example, public political debate should be conducted in terms of considerations of the common good because we cannot expect outcomes that advance the common good uniless people are looking for them, Even a ideal pluralist scheme, with equal bargaining power and no barriers to entry, cannot reasonably he expected to advanee the common good ay defined by the difference prin ciple (1971, p. 360). tut this is, F think, tow indirect and instrumental an argument for the three condi- toons. Like utilitarian defences of liberty, it rests ona series of highly speculative wninlogical and psychological judgements. I want ro suggest that the reason why the Hluvcc are attractive is nor thar an order with, For example, no explicit deliberation 4 the common good and no mavitest equality would be unfair (though of course ir night he. lustead its tbat they comprise elements of au independent aud expressly political ideal that is focused in che first instance!" on the appropriate conduet of public ul runderstand that ideal we ought not to peoveed by seeking to ‘mirror’ ideal fairness in 5 — on. that is. the appropriate ways of arriving at collective decisions. And to the lairness of political arrangements, but instead to proceed by seeking to mirror a systens of ideal deliberation in social and political institutions. [ want now to turn (0, this alternative. we the wotion of a deliberative democracy is routed in the intuitive ideal of a democratic issneiation in which the justification of the terms and conditions of association proceeds through public argument and reasoning among equal citizens. Citizens in 345JOSHUA COHEN vicls at order share a commitment ¢@ the resolution of problems of collective choice public reasoning, and cegard their basie institutions as legitimate in so far as they establish the framework for free public deliberation, To elaborate this ideal, 1 begin with a more explicit account of the ideal itself, presenting what I shall eall the al conception’ of deliberative democracy. Proceeding from this formal eoncep= tion, | purstie a more substantive account of deliberative democracy by presenting an recount of an ide! deliberative procedure that captures the notion of justification through public argument and reasoning among equal citizens, and serves in turn as a model for deliberative institutions. The formal conception of a deliberative democracy has five main features: DIA deliberative democracy is an ongoing and independent assuciation, whose invembers espeet itt continue into the indefinite future D2 The members of the association share (and it is common knowledge that they share) the view that the appropriate terms of association provide a framework for cor ave the results of theie delieration. They share, shat is, a comniltment to coor inating theit activities within institutions thar make deliberation possible and according, 10 norms that they arrive at through their deliberation. For them, free chberation among equals is the basis of legit ay D4 deliberative demouracy is a pluralistic association, ‘The members have diverse preferences, corvietions and ideals concerning the conduct of their own lives. While sharing a commitment to the deliberative resolution of problems of coll tive choive (D2). they also have divergent aims, and do not think that some particular set of preferences, convictions or ideals is mandatory. D4 Because the members of a democratic association regard deliberative procedures fas the source of legitimacy, it is mpportant to them that the terms of their assoei- ation not merely be the results of their deliberation, but also be manifest to them as such.” They preter institutions in which the connections between deliberation and outcomes ae evident to ones in whieh the connections are less clear bs. The members recognize one another as having deliberative capacities, ie. the capacities required for entering into a public exchange of reasons and for acting con the result of such public reasoning. \ ticory of deliberative democraey aims to give substance to this formal ideal by char acioriaing the eonditions that should obtain if the social order is to be manifestly rewulated by deliberative torms of collective choice. F propose to skerch a view of this sort by considering an ideal seheme of deliberation, which I shall call the “ideal defi ‘erative procedure’. The aim in sketching this procedure is to give an explicit state- iment of the conditions for deliberative decision-making that are suited to the formal +s that democratic institutions should conception, and thereby co highlight the proper MoDELIBERATION AND DEMOCRATIC LEGITIMACY cemboxly, so far as possible. I should emphasize that the ideal deliberative procedure is meant to provide a model for institutions to mirror ~ in the first instance For the insti- ly justified ~ and snot to characterize an inital situation in which the terms of association themselves nutions in which collective choives are made and social outcomes publ Luring thent to the ideal procedure, chere are three general aspects of deliberation. Phere isa need to devide on an ag | 10 propose alternative solutions tothe problems 1 the agent supporting those solutions with reasons, and co conclude by setting on wu ahernative, democratic conception ean be represented in terms of the requite- snouts that it sets on sucl a proeedure. In particular, outcomes are demneratially legit smnate if anid only i they could be the abject of «ftee and reasoned agreement among equal. The ideal deliberative procedure is a procedure that captures this prineipte. 11 Adcal deliberation is five in that it satisfies two conditions. First, the participants regard themselves as bound only by results of their deliberation and by the precon ditions for that deliberation, Their consideration of proposals is not eonsteained by the authority of prior norms or requirements. Second, the participants suppose that they & at through th Jt from the results, taking the fact that a certain decision is arrived 1 deliberation as a sufficient reason for complying with it. 12 Deliberation is reasoned in that the parties to ir are required to state their reasons for advancing proposals, supporting thent or criticizing them. ‘They give reasons wvith the expectation that those reasons (and not, for example, their power) will settle the fate of their proposal. bn ideal deliberation, as Habermas puts it, “no fone except that of the hetter argument is exercised? (1975, p. 108). Reasons are tiered with the aint of bringing others to accept the proposal, given their disparate ends (D3) and their commitment (D2) to setting the conditions of their associa: tion through free deliberation among equals, Proposals may be rejected bh they are nit defended with acceptable, reasons, even they could be so defended. The deliberative conception emphasizes that collective choices should he made in a deliberative way, and vot only that those choices should have a desirable fit with the preferences of citizens, 13 In ideal deliberation parties are both formally and substantively eqiul. ‘They are fortnally equal in that the rules regulating the procedure do not single out indi- viduals. Everyone with the deliberative capacities has equal standing at each stage da, propose solutions, And each has an equal ‘of the deliberative process. Each ean put issues on the ag and ffer reasons in support of or in criticism oF proposal ‘oie to the decision, The participants are substantively equal in that the existing dhscribution of power and resources does nor shape their chances to contribute to dlliberation, nor does that distribution play an authoritative role in their deliber- uuion, The participants in the deliberative procedure do nor regard themselves as M7JOsHJA COHEN bound by the existing system of rights, excepe in so far as char system establishes the framework of free deliberation among equals. Instead they regard chat system 1s potential object of their deliberative judgement. 14 Finally, ideal deliberation aims to arrive at a rationally motivated consensus ~ 0 find reasons shat are persuasive to all who are committed co acting on the results| fof a free and reasoned assessment of alternatives by equals, Even under ideal ‘conditions there is no promise that consensual reasons will be fortheonni are not, then deliberation concludes with voring, subject © some form of rule.!* The fact that it may so conelude does nor, however, eliminate the distine- tion hetween deliberative forms of collective choice and forms that aggregite hnondleliberative prelerences. The institutional consequences are likely to be dliferent in the two eases, and the results of voting among those who are com: ininted to finding reaswn that are persuasive to all are Tike to differ from the resules uta e of this commitment wgregation that progeeds in the absen Drawing on this characterization of ideal deliberation, can we say anything more substantive about a deliberative democracy? What are the implications of a commit- sncnt to deliberative decisions for the terms of sovial association? In the remarks that folloge I shall indicate the ways that this commitment carries with ita commitment 0 advance the common good and to respect individual autonomy. Common good and autonomy Consider frst the notion of the coumon good. Since the aim of ideal deliberation is equals, and the condition of pluralism obtains (D3), the focus of deliberation is on ways of to sccute agreement among all who are committed to free deliberation amon sudvancing the ainns of each party to it, While no one is indifferent to his/her own good, evervune also seeks to arrive at decisions thar are aceeptable to all who share the conmnitinent ty deliberation (D2). (\s we shall see just below, taking that commitment srouly «likely to require a willingness to revise one’s understanding of one’s own prcterences anal eonvietions.) Fhus the characterization of an ideal deliberative proce: lure Tinks the formal notion of deliberative democracy with the mote substantive ideal cof a democratic association in whieh public debate is focused on the common good of the members. OF course, talk abour the common good is une thing: sincere efforts to advance it are another. While public deliberstion may be organized around appeals to the com- oni to think that even ideal deliberation would not consist ron good, is there any res ilvantage as the common advantage? There are i of the formal idea of a ins efforts to disguise personal or elas teu responses to this question. The first és that in my aceon M8DELIBERATION AND DEMOCRATIC LEGITIMACY lchiberative democracy, 1 stipulated (D2) that the members of the association are comanitied vo resolving their differences through deliberation, and thus to providing reavants that they sincerely expect to be persuasive to others who share that commit= scat. fn short this stipulation rules our the problem, Presumably, however, the objes tion is best understood as directed against the plausibility of realizing a deliberative pncedse that consarms to the idea, and thus iy not answerable through stipulation. The secunel response, then, rests on a claim about the effects of deliberation on the tivation, of deliberators."” A consequence of the reasonableness of the deliberative procedure (I2) together with the condition of pluralism (D3) is that the mere fact of having a prelerence, conviction or ideal does nor by itself provide a reason in support ‘of 4 proposal. While H may take my preferences propo make the proposal acceptable to others whe cannot be expected to regard my prefer a sufficient reason for advancing a ind reasons that ss that 1 I, deliberation under conditions of pluralism requir ences as sufficient reasons for agreeing, The motivational thesis is that the need to iavance reasons that perstade athers will help to shape the motivations thar people hiring to the deliberative procedure in two ways. First, the practice of presenting. roasuns will contribute to the formation of a commitment co the deliberative resolu tion of political questions (D2). Given that commitment, the likelihood of a sinecee representation! of preterences and convictions should increase, while the likelihood of thaw sstaregic misrepresentation declines. Second, it will shape the content of prefer- ties and convictions av well. Assuming « commitment to deliberative justification, thy discovery that F ean offer no persuasive reasons on behalf of a proposal of mine snag teauistorm the preferences that motivate the proposil Aims that I recognize to be consistent with the requirements of deliberative agreement may tend to lose their tone, at least when Fexpeet others to he proceeding in reasonable ways and expeet the outcome of deliberation to regulate subsequent action. ‘Consider, for example, the desire t0 be wealthier come what may. I cannot appeal to this desire itself in defending policies, The motivational claim is the need to find an lependent justification that does not appeal to this desire and will rend to shape it into, Hor exaniple, a desire to have a level of wealth that is consistent with 4 fevel that ‘others (ie. equtal citizens) find acceptable. [ant of course assuming that the deliber tion is known to be regulative, and that the wealth cannot be protected through wholly, thon deliberative means, Deliberation, then, focuses debate on the common gooxl, And the relevant concep tions of the common good are not comprised simply of interests and preferences that ire antecedent to delihetation. Instead, the interests, aims and ideals that comprise the Common gooxt are those that survive deliberation, interests that, on public reflection, sso think it legitimate to appeal to in making claims on social resources. Thus the first unl thind of the features of defiberative democracy thar | mentioned in the discussion foi Rangls |. el comprise central elements in the deliberative conception 491osHUA COHEN Ihe ideal deliberative scheme also idicates the importance of autonomy ina delib crative democracy. In particular, itis responsive to two main threats to autonomy. As 4 general matter, actions fail to be autonomous if the preferences on which an agent nets are, roughly, given by the circumstances, and not determined by the agent. ‘There (1982) has ges in the are two paradigi eases of ‘external’ determination, The first is what Elst called “adaptive preferences’! These are preferences that shift with el circumstances of she agent without any deliberate contribution by the agent to that shift. This is true, for example, of the political preferences of instinctive centrists who ove to the median position in the political distribution, wherever it happens ¢0 be, call “a loxnicel accommodtationist preferences r The second 1 sh wecommodationist preferences’. While they are deliberately resent psychological adjustments to cond tuons of subordination in which individuals are not recognized as having the capacity tor sell government, Consider Stoic slaves, who deliberately shape their desires to ng relations cof poaver make slavery the only possibility, they cultivate desires to be slaves, and then match their powers, with a view to minimizing frustration, Since the exi 1st on those desires, While their motives are deliberately formed, and they act on their slesitesy the Stoie slaves do not act autonomously when they seck to be good slaves, Fhe absence of akternatives and consequent denial of seope for the deliberative eapac= ities that detines the condition of slaves supports the conclusion that their desires result from their circumstances, even though chose circumstances shape the desires of the Stoic slaves through their deliberation. There are then at least two dimensions of autonomy. The phenomenon of adaptive preferences underlines the importance of conditions that permit and encourage the Ulcliherative formation of preferences: the phenomenon of aecommodationist prefer coikes indicates the need for favourable conditions for the exercise of the deliberative Capacities. Both concerns are met when institutions for collective decision-making are inate on the ial deliberative procedure. Relations of power and subordination sve neutralized (HI, 13, My and each iy recognized as having the deliberative capacities UD si, thu addressing the problem of accommodationist preferences. Furthery the requirement of reasonableness discourages adaptive preferences (12). While preferences sve "ormed” by the deliberative provedure, this type of preference formation is consis: tent with autonomy, sinve preferences that are shaped by public deliberation are not simply give by external cizcumstanees. Instead they are the result of “che power of reason as applied through publie discussion’. hi ar the miore substantive ides! af an association that is regulated by deliberation aimed the common goo and that respeets the autonomy of the members. And seeking to jinning, then, from the formal ideal of a deliberative democracy, we arrive nhouly the ideal deliberative procedure in institutions, we seek iter aliay to design institutions thar focus political dehate on che common good, that shape the identity mon good, aid interests of citizens in ways that contribute fo an attachment to the e4 350DELIBERATION AND DEMUCKATIC LEGITIMACY Jul that provide fiourable conditions for the exercise of deliberative powers thar are required for autonomy: want nov to shift the focus. While [ shall continue to pursue the relationship berween the ileal debberative procedure and more substantive issues about deliberative demo: cratic association, F want to do so by considering four natural objections to the conception F have been discussing, objections to that conception for being sectarian, incoherent, unjust and irrelevant. My aim is not to provide a detailed response to the ‘objections, but to clarify the conception of deliberative democracy by skerhing the lines alone which a response should proveed. Before turning to the objections, I enter two remarks about what follows. First, as H indicated earlier, central aim in the deliberative conception is to specify the institutional preconditions for deliberative decision-making, The role of the ideal lcliberative procedure isto provide an abstraet characterization of the important prop- crtcs ot ekliberative institutions. The role of the ideal deliherative procedure is thus shiteront trom the role of an ideal social eontraet. The ideal deliberative procedure sviridles 4 oad for institutions, a model chat they should mirror, so far as possible. iets mt a choige situation in whieh institutional principles are selected. The key promt about the institutional reflection is that it should make deliberation possible. Institutions ina deliberative demoeracy do not serve simply to implement the results ‘of deliberation, as though free deliberation coud proceed in the absence of appropriate institutions, Neither the commitment to nor the eapaeity for arriving at deliberative decisions is something that we ean simply assume co obtain independent from the proper ordering of institutions, The institutions themselves must provide the frame work for the formation of the wills they determine whether there is equality, whether liberation is free and reasoned, whether there is autonomy, and se on. Second, [shall be focw reflect the ideal of deliberative resolution. But there is of course no reason to expect x here on some requirements on ‘public institutions that as a general matter that the preconditions for deliberation will respece familiar insti- {ional boundaries between ‘private’ and ‘public’ and will all pertain to the public arena, For example, inequalities of wealth, or the absence of institutional measures cleaned to redress the consequences of those inequalities, ean serve to undermine the quality required in deliberative arcias themselves. And soa more complete treatment wok need 10 adlress a wid 1983, chs 3, 6; Coben 1988), anige of institutional issues (see Cohen and Rogers1OSHUA COHEN Sectarianism The first objection is chat the ideal of deli rative demoxraey is objectionably sectarian because it depends on a particular view of the good life ~ an ideal of active citizen: ship. What makes it sectarian is not the specific ideal on which it depends, but the (alleged) tacr that it depends on some spevitie conception at all. [do not think thae the conception of deliberative democracy sutfers trom the alleged difficulty. In explaining, why not, [shall put ro the side current controversy about the thesis that sectarianism, is avoidable and objectionable, andl assume that it is both. Views of the good figure in political conceptions in at least ewo ways. First, the ification of soane conceptions appeals to a notion of the human good. Aristotelian Siew, for esamiple, endorse the claim thar the exercise of the deliberative capacities is 1 fundamental component of a good human fife, and conclude that a political associ ution ought 10 be organized to encourage the realization of those capacities by its rnvembers, A second way in which conceptions of the good enter is that the stability of require widespread allegiance to a specific conception of the good, even ‘hough its institutions ean be justified without appeal to char conception, For example, 4 sucial order that ean be justified without reference to ideals of national allegiance snay none the less require widespread endorsement of the ideal of pacriotie devorion for its stability [A political conception is objvetionably sectarian only if its justification depends on a particular view of the hunan good and nor simply because its stability is contingent il aggeement on the value of certain activities and aspirations. For this ‘on widesprea reasan the democratic conception is not sectarian, It is Urganized around a view of politcal justification ~ thar justification proceeds through free deliberation among cial aitizcns ~and not a conception of the proper conduct of life. So, while it is plaus- ng the ideal of active citizenship, this dependence does not suffice to show that it is objectionably ile that the stability of a deliberative democracy depends on encouray sectarian, Incoherence Consider next the putative incoherence of the ideal. We find this charge in an im- portant tradition of argument, including Schumpeter’s Capitalisnr, Socialism, and Democracy and, more recently, William Riker’s work on social choice and democracy. Tyvant here to say a word about the latter, focusing on just one reason that Riker gives for shinki hat the ideal of popular self-government is incoherent! Instirutionalizing a deliberative procedure requires a decision rule shore of eon= sensits — or example, majority rule, But majority rule is globally unstable: as a general 352DELWERATION AND DEMOCRATIC LEGITIMACY matter, there exists a majority-rule path leading from any clement in the set of alker= nsives to any other element in the set. The majority, standing in for the people, wills cservthing and therefore wills nothing, Of course, while anything can be the result of saionity decision, itis not true that everything will he the result, Bus, because majority vuic iy s0 unstable, the actual devision of the majority will nor be determined by pref crences themselves, since they do not constrain the outcome. Instead decisions will rellvct the particular institutional eonsteaints unsler which they are made. But these constraints are “exogenous fo the world of tastes and values’ (Riker 1982, p. 190). So the ides ‘of popular scfl-government is incoherent because We arey SO f0 speak, governed by the institutions, and not by ourselves. T wane to suggest one difficulty with this argument that highlights the structure of she deliberative conception. According to the argument I just sketched, outcomes in aiority-rule institutions reflect “exogenous” institutional constraints, and not wnder= ing preferences. ‘This suguests chat we can identity the prelerences and convietivns cchoiees apart from the institutions through which they on this conception, the relevant preferences and convietions are those that could be thar are relevant te callecti are formed and expressed, But that is just what the deliberative conception dk capresed in free deliberation, and not these that are prior t© it, For this reason, popular selt-government premtises the existence of institutions that provide a frame- nous constraints’ on the work for deliberation; these arrangements are not “exo bur instead help to shape their content and the way that sitizcns chase to advance them, And, once the deliberative institutions are in-place, tuion of preferenes and preferences, convietions and political aetions are shaped by them, it is not eh that instability problems remain so severe as co support the conclusion that self government is and empty an incoherent ideal Injustice The third problem concerns injustice. [have beet treating the ideal of demovraey as the basie ideal for a political conception, But it might be argued that the ideal of dlemocracy is not suited to the role of fundamental politcal ideal because its treatment tl basic liberties és manifestly unacveptable, It makes those liberties dependent on ilgementy of majorities and thus endorses the democratic legitimacy of decisions that restrict the basic liberties of individuals. In responding to this objection I shall Focus ton the liberty of expression. and shall hegin by filling out a version of the ebjection which [put in the words of an imagined critic You cimbrace the ideal of a democratic order, The aim of a democratic order is to masimize the power of the people so secure its wants, To defend the liberty of expres sion you will argue that that power is diminished if the people lack the information 353JOSHUA COHEN required for exercising their will, Since expression provides information, you will ccanclude that abridgements of expression 10 be barred, ‘The problem with y nur ang iment is that preventing restrictions on expression also restricts the power of the people, since the citizens may collectively prefer such restrictions. And so i is not at all clear asa general matter that the protection of expression will maximize popular power. So asbile you will, of course, not wane to prevent everyone from speaking all the time, sou cannot gletend the elainy that there is even a presumption in favour of the protee- sian af expression, And this sisregard for fundamental as is unacceptable.” This objection has Loree agitinst some conceptions om which democracy is a funda- nesta ideal, particularly those in which the value of expression warns exclusively on its rule as a source of information about how best to advance popular ends. Bue it docs not have any force against the deliberative conception, since the latter does not rniake the case for expression turn on its role in maximizing the power of the people ive choice, in to secure its wants. That ease rests instead on a conception of colle particular oa view about how the wants’ that are relevant to collective choice are formed and defined in the first plice, The relevant preferences and convietions are those that arise from or arc confirmed through deliberation, And a framework of Free expression is required for the reasoned consideration of alternatives that comprises leliberation. ‘The deliberative conception holds that free expression is required for determinang what advances the common good, because what is good is fixed by public lcliberation, and not prior t0 it, Its fixed by informed and autonomous judgements, innvalving the exereise of the deliberative eapacities. So the ideal of deliberative democ- icy is ot hostile to Tree expressions it rather presupposes such freedom, ius what about expression with no direct bearing on issues of public policy? Is the tred co treating all non-political expres- ouception of deliberative demweraey eon so as second-class, and ay meriting lesser protection? [do not think so. The deliber= juve coneepfinn construes polities as ainsing in part atthe formation of preferences and Convictions, slot just at their articulation and aggregation. Because of this emphasis on reasoning about preferences and convictions, and the bearing of expression with no political Focus on such reasoning, the deliberative view draws no bright fine between political speech and other sorts of expression, Forms of expression that do not address issties of policy may well bear on the formation of the interests, aims, and ideals that citizens bring to public deliberation. For this reason the deliberative conception sup- ports protection for the full range of expression, regardless of the content of that core of the ideal of frve deliberation among equals to expression. Teavould violate th fix preterences and convietions in advance by restricting the content oF expression, or hy barring access t0 expression, oF by preventing the expression that is essential to haw- tig, convietions at all. Thus the injustice objection fails because the liberties are nor sim kes pls amon: the topies For deliberations they help to comprise the framework thar ms a possible. 34DELIBERATION AND DEMOCRATIC LEGITIMACY irrelevance The irrelevance objection is that the notion of public deliberation is irrelevant to modern political conditions.” This is the most important objection, but also. the one about which it is hardest to say anything at the level of generality required by the present context. Here again T shall confine myself t0 one version of the obje though one that take to be representative, The version that F want co consider starts from che as unption that a direct democ- racy with citizens gathering in legislative assemblies is the only way to institutionalize 1 deliberative procedure, Promising that, and recognizing that direct democracy is ‘possible under modern conditions, the objection concludes that we ought to be led ves ejeet the ideal hecause i i not relevant co our circumstances. The claim about the impossibility of dircet democracy is plainly correct. But | see ho merit iv the claim that direct democracy is the uniquely suitable way w institu lize the ideal procedure) In fact in the absenee of a theory about che operations fof democratic assemblies ~ a theory which eannor simply stipulate that ideal condi- is no reaqon to he confident that a diteet d ocracy would subject political questions to deliberative resolution, even if a direct democracy were a genuine institutional possibility. In the absence of a realistic account of the fumetioning of citizen assemblies, we cannot simply assume that large gatherings with open-ended agendas will yield any deliberation at all, or chat they will encouray participants to regard one another as equals ina free deliberative procedure. The appropriate ordering tl deliberative institutions depends on issues of political psychology” and political ichaviour: its not an immediate consequence of the deliberative ideal. So, far from hiciny the only deliberative scheme, direct democracy may not even be a particularly oud arrangement for deliberation, Buty once we reject che idea that a direct democ: icy as the natural or necessary form of expression of the deliberative ideal, the hightforward argument for irrelevance no longer works. In saying how the ideal hight be relevant, however, we come up against she problem F mentioned earlier. Lacking « good unnlerstanding of dhe workings of institutions, we are inevitably tin back on more or less speculative juckgements. What follows is some sketchy reamatks on ane ise that should be taken in this spit At the heart of the institutionslization of the deliberative procedure is the existence af areas in which citizens ean propose issues for the politcal agenda and participate in dehate about those issues. The existence of such arenas is @ public goo, and ought tw be supported with public money. This is nor because public support isthe only way, tor even the most efficient way, of ensuring the provision of stich arenas. Instead, public nocratie order £0 the resolution of provision expresses the hasic commitment of a d political questions through free deliberation among equals. The problem is to figure jut how arenas might be organized to encourage such deliberation,JOSHUA COHEN In considering that organization, there are two key points that L want to underscore. Ue frst is that material inequalities are an important source of political inequalities. Ihe second point = which is more speculative ~ iy that deliber ive arenas which are osganized exclusively on local, sectional or issue-specifc lines are unlikely to produce the open-ended deliber ion requireal to institutionalize a deliberative procedure, Sinee these arenas bring together only a narrow range of interests, deliberation in them an the expected a best to produce coherent sectional interests, but no more comprehen: sive conception of the comnton good. These two considerations together provide support for the view that political parties supparted by public funds play an important role in making a deliberative democracy possible.” There are two reasons for this, corresponding co the ovo considerations | have just mentioned. In the frst place, an important feature of organizations gener ally, and parties in particular, is that they provide a means through whieh individuals “ind groups whe kick the “natural” advantage of wealth ean overcome the political disadvantages that Follow on that lack. ‘Thus they can help to overeome the inequal tics an deliberative arenas that result from material inequality. OF course, eo play this sole, political organizations must themselves be freed from the dominanee of private resources, andl that independence must be ranifest. ‘Thus the need for public funding. Here we arrive back at the second point thar I mentioned in the discussion of Rawls's view ~ that measures are necded to ensure manifest equality ~ though now asa way vy a shared commituent to deliberative decisions, and not simply as am expression of the commitment to faimess. Second, because parties are required t0 adress a comprehensive range of political issues, they provide arenas in which debate js tit restricted in the ways that itis in local, sectional or issue-speci organizations, They ean provide the more open-ended arenas needed to form and articulate the conceptions of the conmon good that provide the focus of political debate in a deli Vhere is certainly no guarantee that parties will operate as I have just described. But this is not especially troubling, since there are no guarantees of anything in politics. The qhestion is how we can best approximate the deliberative conception. And it is dlitficule to sce how that is possible in the absence of strong parties, supported with public resources (though, af course, a wide range of other conditions are required wv Thave stiggested that we take the notion of democratic association as a fundam political ideal, and have claborated that ideal by reference to an ideal deliber procedure and the requirements For institutionalizing such a procedure, I have sketched 356DELIHERATION AND DEMOCRATIC LEGITIMACY 44 few of those requirements here, ‘Te show that the democratic ideal can play the role dot fundamental organizing ideal, I should need to pursue the account of fundamental liberties and political organization in much geeater detail and to address a wide range co other issues as well. OF course, the richer the requirements are for institutionalizing thee public delberation, the larger the range of issues chat may need to be removed fren the poitical agendas that iy the larger the range of issues that form the back- cron th work of public deliberation rather than its subject matter. And, the larger that sanggey the less there is deliberate about. Whether that is good news or bad ews it iy in any case a suitable place to conclude, NOTES 1 have hal countless discussions of the subject matter of this paper with Jocl Rogers, and wish to thank him tor bis unfailingly sound and generous advice, For our joint ereatment of the issues that diseuns bere, see Cohen andl Rogers (1983), ch. 6. The main differences between the teat inca af assues here and the tr rent an the book es in the explicit aecoune of the ideal Ubhiberative proce. the fuller treatment of the notions of autonomy and the common goods nial the account of the vonneetion of those notions with the ileal procedure. An earlier draft of fim paper way presented t0 the Pacific Division Meetings of the American Philosophical rewuition, Lwould fike to thoak Loren Lomasky, Alan Haralin and Philip Persie for helpful Senients on tbat dealt 1 Fomigially came arose the term “eliberative democracy’ in Sunstein (1985). He cites (n lan arate by Bessette, whiel fave nor consulted. 2 Tor some representative examples, see Sunsecin (1984. 14 Ackerman (1984, 1986), 5 Vhhave in mid, in particulae, eitciyns which focus on the ways in which material inequale 1986), Michelman (1986). ftv an weak politcal aries vestrict democraey by constraining publie political debate or tandor ing the equality of the partiipants that debate. For discussion of these criti: isms and of thcir connections with the ileal of demoeratie order, see Cohen and Rogers (1983). chs 3, 65 Unger (1987). ch. 5. 44 Inthe dncussion that follows I draw on Raves (1971, esp. sections $6, 37,43, 54% 1982} This riection i no patticularly idianyncratic. Sunscein, for esamiple, argues (1984, 1985) that adeal pluralism has never fen embraced as a political ideal in American public lw. 6 Olfically, the requirement of fait value iy thar “everyone has a fait opportunity to hold mublic office and to influence the outcome of political decisions’ (Rawls 1982, p. 42) Whatever their stingeney. these distributional requirements take priority aver the differ crce priniple, since the eequireinent of fae value is part of the principle of Tiber chat is, pp. 41-2), S- The importance of democratte policy che account af the acquisition of the sense of hustice i underscored in Rawls (1970), pp. 4734 «Ve principe of partivipation states dhat ‘al citizens ae to have an equal eight to take part sind to determine the outcome of, the constitutional process that establishes dhe Laws ‘sith which they are to semply” (Rawls 1971. p. 220). the first principle of justice (Rawls 198: 397QR 1osHua COHEN assume that the principle of participation should be understood here to include the requirement of the fair value of political ibe The reasons for the phrase ‘inthe frst instance” are clarified below. Since waiting the first draft of thy section oF the paper, [have read Elster (1986) and Mania HON7} which both present parallel conceptions. Th h Elster’ trea Incnt of the psychology of public deliberation (pp. H12-13). Lam indebted ro Alan Hanslin iy expecially 0 wi for bringing the Fbver aricle 40 my atention. ‘The overlap is explained by the face that 1979, 1984). Lave abo foul the discussion of the contractualist aeeoune of motivation in Scanlon (1982) very gers Manan Fall drawe un Habeemas. See Habermas (1975, helpful For philosophical discussions of the importance of manifestness or publicity, see Kant 1198), pe 135% Rawls 197 Ne ps £33 and section 29: Williams (1985), pp. 101-2, 200, the distinction betseun the ideal procedure and an initialehoice situation will be import- ant nv the fer dscassinn of motivation formation and institutions Fivere anv of course nonin and reguiteiments on individuals that do not have deliberative hiotficaton. The cnecption of dehiberarive democracy is, in Rawls term, a “political “oaiccption’, and not a comprehensive nioral theory. On the distinction between political tna! counpreliesise theories, see Rawls (1987) pp 1-28. For criticism af the reliance on an assumption of unanimity in deliberative views, see Maxint (1987), pp. 35961 Note the parallel with Flier (1986) indicated in note 12. See also the discussion in Habermas (1975), pe 108, about “needs thar can be communicatively, shared’, and abernas (1979) ch. 2 For an interesting, diwussion of autonomons preferences and political provesses, see Sunstein (1986, pp. HAS=S85 1984, pp. 1699-1700), Whitney ts. Calitornia, 274 US 357 11927), Jor contrasting views on sectors, see Rassls (1987); Dworkin (1985), pr 3; Mactnnyre 19ST): Saul (19821, ‘Sew Riker 11982}; for discussion of Riker’ view see Coleman and Ferejohn (1986); Gohea Hose) tor discussion of the conection hetwoon ideals of democracy and freedom of expression, Te Moikicjob (1948), Tbe (1978: 1985, ch. 2) and Ely (1980, pp. 93-4, 105=16}, Freeda of espression i a special cave that can perhaps be more straightforwardly accom fnoiated by the skmoxratic conception thaw ibertiey of consignee. or the ibe hese other liberties can jy given satisfactory treatment hy the democratic conception, and would reject iti Ld foot think so, The general alca would be to argue chat other fundamental lihertey must be Jrotectod iH citvens are to be able to engage and! have equa standing in political eth a risk for their convictions oF sssuciated vith privacy tnd personhood. {do think, however, th ration without feat that such engagement pas th penanal choices. Whether this fine of argument will work our on the details smarter For Thus objection is suggested in Dworkin (1985), pp. 61-3. He cites the following passe froma letter of Madison's: "And a people who mean ro be their own Governors, must arm thenseloes with the power ried karoreledge gives’ (emphasis added} ‘On the distinction between content-based and contentncuteal abridgements the complen= ites of deawinig the distinction in particular cases, and the special reasons For hostility t0 pane based alirigenents, see Trib (1978) pp. 584-682; Stone (1987). pp. 46-118, 358DELIBERATION AND DEMOCRATIC LEGITIMACY | an wot suggesting that the deliberative view provides the only sound justification for the liberty af expression, My concert eee is rather to shouw thar the deliberative view is capable th For an especially sharp statement of the relevance objection, see Schmitt (1985). 2° Ths sew is sometimes associate with Rousseau, who is said go have conflated the notion bi democratic fegitimacy with the institutional expeession of that ideal in a direct demo ney. For critic of this nterpectation, see Covet (198% in the Federalist Papers. Objecting to. proposal advanced by fe regularly referred cansitutional questions “to the decision of of aisturbing. the publie tranquillity by interesting too strongly the public passions’. And! “i iy the reason, Mone, of the public that ought ro control and regulate the government... [while] the passions ought to be controlled and eggulaced by che government 1 endorse the form of the objection, nat its content. (Federalist Papers 1961, pp. 315-17.) 1 Here Ladeaw on Cohen and Rogers (1983), pp. 154-7. The idea that parties are required ‘us ognize political choige and to provide a focus for public deliberation is one stand of nts ahout “responsible parties” in American politicakse inf this view has been) greatly aided hy Perlman (1987), andy more generally, by The work of my calleague Walter Dean Burhan on the implications of party decline for Ibuemany (1982), 28 Madison urges this poi Jetforsoa whieh would by the whole of society”, Madison argues that this would inetease the danges ence lite angus ue, My under: REFERENCES Ackerman, BA. 1984 The Storey Lectures: Discover the constitution, Ville Law fournal, 93: 1013-72. — 1986: Discovering the constitution. Unpublished manuscript Durahann, W.D, 1982: The Current Csés in American Politics, Oxford: Ostord University Press Gouin, f 198ha: Autonomy aud democracy: reflections on Rousseau Philosophy and Public Affi, 1S: 275-8 18h An epistemic eonception of democracy. Etbies, 97: 26-38, = 148k Line material basis of deliberative democracy. 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