Democracy and critique

Quite some time ago Rainer Forst and I were having a conversation and he asked me where exactly I saw the point or points of disagreement between his work and my own perspective. I was hard pressed to give an answer. I am still hard pressed. When I read his work, I nod; when I hear him speak, I say yes! We are very clearly on the same page in so many respects and I have nothing but admiration (and a little bit of envy) for the clear and compelling stand he takes in defence of reason, justice and a strong principle of justification. Despite the rhetoric one hears about ‘dominant Kantianism’, unapologetic universalism goes against the current rather than dominates it. In any case Forst’s universalism is sensible, pluralist-sensitive and progressive. So in all this I stand with him. Yet there are still differences between us and today my comments on this marvelous book ¹ will try to articulate some of them.

To state it rather baldly, my issue with Forst (I use ‘issue’ because ‘problem’, ‘objection’, even ‘criticism’, are all too strong. ‘Issue’ is nice and vague), is that he is not enough of a democrat or perhaps a democratic theorist for my taste. In one sense this is a trivial difference and simply reflects our separate spheres of interest and scholarship. Think of it more as a division of labour. I am interested in democratic institutions and the public sphere. My questions are often things like ‘Under what conditions can referenda be deliberative?’ or ‘What are the limits of civility within particular public debates?’ or ‘What factors shape public opinion?’ Forst is interested in theories of justice, foundations, human rights and global obligations and his questions are bigger than mine. I am a political theorist, he is a political philosopher, is perhaps one way to articulate the difference.

But does this division of labour also hide a deeper difference? Maybe. It depends a lot on how one reads Forst’s work. But I am going to try and push this line of argument ever so much. Here is the crux of my claim: I suspect that Forst sees a larger role for hypothetical reasoning in his critical theory than I do and a smaller role for the actual reasoning of concrete embodied citizens. This leads me to take ordinary citizens more seriously both as a source of legitimacy but also paradoxically as a threat to legitimacy.

Let me be clear, I am not accusing Forst of adopting what could be called the radical hypotheticalness of Kant. Kant’s test of right is straightforward: ‘If a public law is so constituted that a whole people could not possibly give its consent to it…it is unjust.’ ² The hypothetical nature of this test means that the test is passed or failed purely on the basis of abstract reasoning and not on the bases of empirical evidence of consent such as votes, collective action, public opinion, or political culture. Furthermore the test itself is deduced from what is necessary to a rightful condition. So Kant is doubly abstract. The test is derived from a priori reasoning and the test is administered in the mind of the solitary philosopher (although to be fair to Kant, he seemed to think that we were more likely to come up with the right answer [and there was a right answer] if we engaged with other minds via the public use of reason).

Things are very different for Forst. Legitimacy is embedded in ‘political practices of justification’ (2013: 3). This is a significant departure from Kant. ‘For the political question of justification is not posed in an abstract but always concrete way, namely, by historical agents who are no longer satisfied with the justifications for the normative order to which they are subjected’ (ibid.: 2). The normative history of legitimacy is driven by demands for justification. Individuals, groups, whole peoples stand up and say ‘No!’ They demand justifications for exclusion, oppression, domination, and more generally for the right to ‘rule over’. Social and political history is the long and often tragic story of reasons for power gaining and losing purchase; for even in the most oppressive states and in the most unjust times those in power have some kind of an answer to the question ‘Why do you get to do this to me?’ even if they do not actually allow the question to be spoken. As we move into the modern era, justification takes on an ever more reflexive and public character. While power always needs a justification, that justification is not always publicly demanded. In the modern world not only do we begin to ask the reflexive questions about who gets to ask for justifications and who gets to give the answers, but what counts as a justification undergoes a reflexive turn. God, nature, self-evident truth, and even ‘because I can’ begin to lose their power as justifications and we are thrown back onto the very idea of what could it mean to be justified. Here Forst introduces standards of generality and reciprocity as criteria of justifiability that are reconstructed from the very idea of what it would mean to be justification to all those affected.

So the story that Forst tells is deeply embedded in the lived lives of human beings demanding respect, pushing back against humiliation, challenging domination and questioning suffering. Why do humans do that, pretty much everywhere and anywhere they have lived under oppression (although of course with varying degrees of success)? Why have we always ‘chafed at the bit’ so to speak? Is it a claim about human nature? Forst does not go too far down this road and he does not have to really. It seems to me that a fundamental right to justification can be reconstructed as the essential link tying human struggles across time and space without deeper metaphysical claims about the human condition. I find this argument deeply persuasive and not in the least abstract or Kantian in the problematic sense of beginning in a priori thinking.

So where do I think he relies too much on hypothetical and abstract reason? It is when we turn from the demand for justification as a universal foundation underpinning a theory of justice and legitimacy to justification as a conceptual instrument of critique. In particular I think that the criteria of generality and reciprocity are, on the one hand, too indeterminate to have critical teeth and on the other risk creating a critical standard that stands above the democratic actions and lives of real citizens. But much depends on what Forst means by the terms generality and reciprocity.

In a 2011 essay, entitled ‘The Ground of Critique: On the Concept of Human Dignity in Social Orders of Justification’ included in this volume, Forst lays out three essential components to a ‘critique of relations of justification’. In the introduction to the book (written later, I am assuming) he expands on these three in a significant way. The first task of a critique of the relations of justification is to uncover ‘non-justifiable political and social relations’ (2013: 7, 106). ‘By this is meant all those more or less institutionalized social relations and structures which do not measure up to the standard of reciprocal and general justification and are marked by forms of exclusion, by privileges and domination’ (ibid.: 8, 106). By employing the term non-justifiable rather than non-justified, Forst introduces the role of hypothetical reason into the process of critique. Forst asks: Can we identify social and political (he also includes cultural) relations that could not be (in principle) justified reciprocally and generally? In this first task or meaning of critique it is conceivable for the theorist to identify relations as problematic which nevertheless appear justified – perhaps even fully justified to individuals affected by those relations. Some tough and familiar examples here might be patriarchal/traditional gender roles especially in the family. The critical theorist might identify these as unjustifiable but the subject may not. Another example might be various market relations which to a critical theorist might seem unjustifiable in reciprocal general terms but seem generally fine to citizens or at least fine to most citizens. OK so at this first level there is clearly a danger of a potential disjuncture (a danger common to all critical theory) between what the critical theorist argues is an unjustifiable political, social, or cultural arrangement and what appears to be justified in the eyes of citizens.

Forst is very aware of this problem and so he adds two more tasks or levels of critical theory. ³ The second level involves a critique of arguments, principles and justifications deployed to support unjustifiable social and political relations or to insulate them from challenge. This is a critique of ‘false’ justifications. On its own, the critique of false justifications is subject to the same disjuncture as the critique of social relations noted above but in his later formulation Forst adds a very important caveat: ‘The criteria of reciprocal and general serve in this regard as essential reference points, even though they often do not lead to definitive answers, for these can only be provided by those affected’(2013: 8). This is crucial. This represents a very significant divide in political and moral philosophy. On one side of this divide, stand political philosophers who insist that all hypothetical reasoning ultimately must be tested against the reasoning, opinion and beliefs of the real people being affected by the political, social, or cultural norm under scrutiny. On the other side of the divide are proponents of ideal theory and strongly epistemological approaches to justification in which the philosopher or social critic is adequately equipped to answer these questions even in the name of all those affected. ⁴ Forst clearly identifies himself with the first group but his theory sometimes looks a lot like it fits better in the second group. For example, this caveat is not present in the earlier articulation and has not played anything like a central role in the development of his thought.

The third task of a critical theory involves the demand for a ‘basic structure of justification’. Here the critical theorist identifies and problematizes the absence, weakness, or corruption of structures and institutions of justification. This third task then loops back to connect with the first by bringing together substance and procedural elements of critique into a whole. Furthermore this third task is the ‘first imperative of justice’ (2013: 8). So although it is third on the list, it is first in importance. Forst walks a fine line with regard to the demand for a ‘basic structure of justification’. On the one hand, the basic structure is not a complete script to be applied to the world (this would give the theorist too much of a role vis-à-vis all affected); on the other hand, without some basic structure of justification in position there is no opportunity for those affected to demand and get justifications in the first place. So what is meant by basic structure? It is here that I suspect Forst is thinking in general Rawlsian terms of the basic conditions of liberal democracy more than in the Habermasian terms of the discursive conditions of opinion and will formation. Basic structures of justification are first and foremost the equal rights and liberties necessary to support ‘an autonomous discursive practice among those “affected” or “subjected”’ (ibid.).

This is a powerful picture that has the respect for the autonomy of the independent agent at its centre and yet this image seems to me both to underestimate and to overestimate the role of ordinary citizens in the emancipatory project of critical theory. It underestimates the role of citizens by sometimes implying (e.g. in the 2011 essay) that the three tasks of critical theory can be undertaken over the heads of citizens. The task of critical theory is to speak in the name of citizens. And it overestimates the role of citizens by suggesting that identifying particular social arrangements or public arguments as failing the generality-and-reciprocity test will have an emancipatory effect. Let me use an example to try to flesh out what I mean here. We can clearly see that the banning of minarets in Switzerland fails a generality-and-reciprocity test. We can in addition identify the ways that the campaign leading up to this vote was full of ‘false’ justifications, rhetorical manipulation and plain old bad arguments. Finally we can argue either that the ban itself is an attack on a basic structure of justification because it undermines the Muslim minority’s sense of being equal members of society whose voice and opinions matter or that the system of direct democracy is flawed in its inability to make room for minority voices in public debates. These are all good arguments. Forst offers a very clear stand from which to criticize the legal banning of minarets. With any luck these arguments will contribute to a significant challenge to this law in international human rights courts.

But as a democratic theorist, I see things differently. Forst’s approach misses or bypasses the real problem. The problem is not that the majority of Swiss citizens violated a principle of generality and reciprocity; the problem is that a majority of Swiss citizens appeared not to care that they violated a principle of generality and reciprocity.

We live in societies that are full to the brim with injustice, inequality, oppression and exclusion. As critical theorists we are, on the one hand, committed to criticizing these pathologies and Forst offers a very promising framework from which to do that. But on the other hand, as I have tried to point out above, we are also deeply committed to respecting the autonomy of all those affected, hearing the voices of real people, and generally proceeding in making the world a better place by democratic means. But one of the most serious and troubling sources of pathology is a populist pathology that sees challenges to the basic structure of justification coming from below not from above. It is too simple to say that this is a case of populism orchestrated by an unprincipled political elite willing to exploit grass-root insecurities for political gain. This is surely part of the story but it is not the whole story and in any case the argument that democratic publics are the creatures of corrupt elites contains its own paternalistic dangers.

Growing anti-Semitism, Islamophobia and a general nativism overtaking large pockets of democratic citizenship is frightening. And what is most frightening about it is that pointing out that the claims and arguments made by these groups all fail a generality-and-reciprocity test appears to have no purchase because it is generality-and-reciprocity that is being rejected! And it is being rejected by the democratic public in whose name we are bringing and applying the test. Political philosophy sometimes skates above what I see as the challenge of 21st-century critical theory: the challenge for all of us deeply committed to autonomy and anti-paternalism is how both to respect the autonomous voices of ordinary citizens and at the same time to criticize and limit those voices.

I honestly do not have a solution to this problem. I do suspect that Forst and I approach the problem from different angles. In the end he will have to rely on courts more than publics, it seems to me, to operationalize his critical theory. I will stay at the level of opinion formation and seek to criticize the social and cultural forces that undermine popular commitments to generality and reciprocity. So perhaps it is just a division of labor after all.