In defense of democratic proceduralism

Moving beyond monistic cosmopolitanism, Alessandro Ferrara’s new book makes an important contribution to contemporary critical theory. ¹ Ferrara hopes to deepen and thereby preserve a basically cosmopolitan political philosophy by working to make sure that it can take the ‘fact of (hyper) pluralism’ seriously. Like no one else working in contemporary critical theory, he brilliantly underscores the surprising vitality of John Rawls’ ‘late’ contributions to political liberalism. By reworking Rawls, Ferrara suggests, critical theorists sympathetic to Habermasian deliberative democracy can meet many of the challenges of our global age.

In part because of space constraints, and in part because of my own disciplinary limitations, I focus here on one straightforward but fundamental question: what should we make of Ferrara’s contributions specifically to democracy theory? More precisely: has he succeeded in outlining a cogent account of democracy ‘beyond the nation state’? As I hope to show, the final answer turns out to be mixed.

On my reading, Ferrara’s democratic theory suffers from some conceptual and programmatic ambiguities. Throughout the volume, he suggests that the idea of a ‘democratic ethos’ (or, alternatively, democratic ‘spirit’ or culture) offers a richer theoretical starting point than a so-called ‘procedural strategy’ (DH: 4–5). ‘Proceduralism’ ultimately functions as a stand-in for a variety of approaches to democratic theory, ranging from Hans Kelsen’s robust defense of parliamentary democracy to Schumpeter’s conservative competitive elitism (ibid.: 4, 30–1, 169). (Conveniently perhaps, Ferrara neglects to mention that Habermas also describes his rich and demanding account of democracy as proceduralist, and that other neo-Kantians within the Frankfurt tradition could be similarly characterized. ² ) ‘Proceduralism’, of course, possesses a complicated conceptual pedigree in modern democratic theory. Ferrara tends, in any event, to make short shrift of such ‘proceduralist’ approaches, and the term sometimes serves him as something of a straw man.

The basic flaw of democratic proceduralism so conceived is that it ignores how conventional decision-making mechanisms (e.g. majority rule, competitive elections) can easily be abused and thus ‘substantively deprived of all meaning’ (DH: 4). According to Ferrara, the ‘possibility of elections without democracy’ is real: seemingly democratic procedures and institutions can easily mask a lack of genuine democracy (ibid.). The proceduralist mindset also gets in the way of thinking innovatively about democracy’s most appropriate postnational instantiations. Democrats, of course, cannot simply ignore matters of institutional design. Yet the key conclusion Ferrara draws is that we now would do well to refocus our energies on an ‘alternative strategy’ of conceiving of democracy as an ethos ‘that underlies and enlivens the procedural aspects of democracy’ (ibid.: 5).

At times, Ferrara seems to be making the sensible but uncontroversial claim that democratic theory needs to offer an account not just of institutions and procedures but also of its underlying ethos or culture without which they are unlikely to flourish. Even some of the rather mainstream democratic proceduralists he apparently has in mind (for example, Robert Dahl), after all, readily concede the importance of a vibrant supportive culture or ‘ethos’ for democracy. ³ At other junctures, Ferrara goes further and takes a more controversial stance: the definition of democracy hinges on the idea of a democratic ethos (DH: 5), and elements of democracy’s ethos can be interpreted as constituting the ‘keystone of a democratic polity’ (ibid.: 53). According to this second line of inquiry, a proper ethos or spirit not only supplements democratic procedures but should be seen as possessing a certain primacy in relation to them. Unlike democracy’s institutional mechanisms, the democratic ethos cannot be ‘trivially imitated’ and thus is less subject to being ‘substantively deprived of all meaning’ than procedural mechanisms (ibid.: 5). Correspondingly, Ferrara devotes most of his impressive intellectual energy to developing a convincing account of democracy’s ethos, tending to place – with a few notable exceptions – questions of institutional design on the back-burner.

This initial analytic tension seems linked to an additional one. Some of Ferrara’s discussion seems intended to underscore how and why ‘openness’, defined as ‘an attitude of receptiveness to novelty, of exploration of new possibilities for a life form’, represents the core trait or keystone of the democratic ethos and thus of any viable democratic polity (DH: 49, 53). At other junctures, openness is viewed more modestly as complementing other co-equal components of the democratic ethos (a passion for the common good, equality and equal recognition, and individuality). ‘Democracy as a political order flourishes when democracy is or becomes a form of social life or an ethos and among the psychological traits that sustain that democratic ethos is a “passion for openness” broadly conceived’ (ibid.: 49). In any event, democratic openness does not in fact always play a major role in Ferrara’s story. In his otherwise fascinating discussion of how the democratic ethos can be seen as resting on independent sources in religious and moral traditions outside the West, for example, openness gets dropped from the story, with the author instead focusing on how such traditions provide ample resources for buttressing an orientation to the common good, equality and individuality (ibid.: 126–33).

The relationship of the democratic ethos (and especially openness) to other pieces of the author’s complex puzzle might also have been more clearly elucidated. For example, in the volume’s various endorsements of the idea of deliberative democracy, one might have learned more about how precisely Ferrara conceives the nexus between democracy’s ethos and deliberative politics more generally (DH: 167–71, 182–6). To be sure, we could interpret deliberative democracy as linked to an ethos in which ‘passions’ for the common good, equality, individuality and openness are crucial. Yet the exact nature of the relationship between the ‘culture’ or ‘ethos’ of deliberative democracy and its other features, institutional or otherwise, remains ambiguous. Should we understand deliberative democracy, for example, first and foremost as a ‘spirit’ or ‘ethos’, apparently less easily subject to distortion or abuse than its proceduralist or institutionalist elements? The thesis that democratic ethos has a certain primacy vis-à-vis proceduralism certainly points in that direction. Is the ethos or spirit of deliberative democracy thus somehow more significant or fundamental, in part because less easily manipulated or distorted, than its institutional and procedural traits? Not surprisingly perhaps, Ferrara seems especially enamored of deliberative democracy’s ethical virtues; for example, its apparent tendency to undergird ‘moral suasion’ within structures of governance so as to help build trust and social capital (ibid.: 182).

If this in fact represents a fair rendition of the author’s intentions, we might begin to pose some critical questions. Most immediately, we might worry about the malleable and perhaps excessively open-ended character of the notion of ethos or spirit, along with the dangers of any attempt to rework democratic theory so as to give it a privileged analytic position. Do we really believe that the idea of an ethos or spirit is less easily misused or abused than democracy’s familiar procedural criteria (e.g. majority rule, judicial review, etc.)? That it provides a better starting point for making sense of democracy’s core traits? In fact, one reason such notions have tended to take a back seat in recent democratic theory are familiar worries about their ambiguity and political pliancy: Montesquieu, for example, was eagerly embraced by many latter-day European conservatives in part because his (rather mushy) notion of ‘spirit’ allowed them to formulate retrograde defenses of a shared (often national) ‘spirit’ or identity. Reified ideas of a cultural or national ‘spirit’ often functioned as ideological apologies for political systems lacking basic liberal and democratic procedures.

Obviously, this is not where Ferrara wants to go. Yet his account provides some ground for concern. As conceived here, the idea of a democratic ethos might be reasonably interpreted as referring to a multiplicity of potentially conflicting elements: ‘democratic society’ (in John Dewey’s sense), certain psychological traits, political ‘passions’, political culture, an underlying organizational or ‘energizing’ principle for a particular polity (as thematized by Montesquieu or Jefferson), and also perhaps ethics or morality (DH: 44–66). The term, at the very least, seems elastic.

More specifically, the passion for openness, as noted, captures ‘an attitude of receptiveness to novelty, of exploration of new possibilities for a life form’ (DH: 49). On Ferrara’s view:

… [i]ndividuals are motivated by a passion for openness when, in any life situation in which they are immersed, they are willing to consider alternatives, cognitive or practical, different from the ones they are used to … when they are willing to venture into the unknown, when they are open to accept the unexpected as a potential carrier of goodness yet to be decoded, when they are emotionally ready to accept change … [or] prefer open contexts, as ones that embed a potential for better responsiveness to changing life needs, over entrenched patterns. (DH: 49)

The problem with this position is that it is by no means self-evident that democracy is inconsonant with a political preference for ‘entrenched patterns’: self-government and certain ‘psychological traits’ receptive to novelty should not be equated (DH: 49). Do we really want to suggest that many basically defensive and ‘stabilizing’ social movements (e.g. against economic austerity and in defense of the Welfare State) are somehow incongruent with the democratic ethos and its (allegedly) built-in preference for change and innovation? Under contemporary conditions of intensified social acceleration, Ferrara’s positive assessment of political cultures open to novelty and experimentation has much to recommend it. Yet a proper political – and perfectly legitimate democratic – response to social acceleration sometimes requires not celebrating but stubbornly resisting change and innovation. Making the idea of democracy hinge on a built-in psychological preference for novelty, Ferrara may inadvertently jettison procedural essentials. To be sure, Ferrara admits that openness can take potentially pathological forms – when, for example, ‘a democratic rule of law becomes permeable to the action of special interests – political or economic – that bend its consistency to their own factional advantage’ (ibid.: 66). Yet his example arguably highlights the necessity of proper procedural and institutional mechanisms just as much as a proper democratic political culture or ethos.

A tendency to emphasize the centrality of democratic ethos, at the cost of unwittingly occluding basic democratic procedures, also surfaces in chapter 7 (‘Beyond the Nation: Governance and Deliberative Democracy’), where Ferrara addresses questions of democratic institutional design. Here again, Ferrara makes many insightful observations. Nonetheless, some of the chapter’s overly strong claims seem motored more by his underlying skepticism about proceduralism (and institutionalist variants of democratic theory) than the evidence at hand.

Ferrara declares that ‘[n]o reason thus exists for supporters of deliberative democracy to experience anxiety vis-à-vis the rise and diffusion of processes of governance in the postnational context of contemporary politics’ (DH: 184). No reasons whatsoever? What about the massive body of impressive literature emanating from legal scholars, political scientists and others highlighting the myriad problems generated thereby for even relatively modest definitions of legality and democracy? Not surprisingly perhaps, he tends to downplay recent claims that contemporary democracy is in dire crisis, even while conceding that the social and economic terrain on which democracy presently operates is decidedly inhospitable (ibid.: 8–13). Opposing those – most prominently perhaps, Claus Offe ⁴ – who have proffered significantly more skeptical assessments of the now fashionable concept of ‘governance’, Ferrara posits that deliberative democracy at the postnational level need not fear the proliferation of novel

… structures and methods of governance, soft law, the open method of coordination, steering the interaction of a plurality of actors through best practices, benchmarking and moral suasion … (DH: 178)

Because we need to rethink democracy beyond the nation-state, nothing in principle should engender principled skepticism about these and other emerging forms of governance, a concept he defines as referring to ‘the coordination and regulation of political action in the absence of a capacity to impose sanctions for noncompliance’, sanctions associated here with the Weberian concept of a ‘legitimate use of physical force’ (DH: 173). Like others now pondering the prospects of postnational democracy, Ferrara marries his normative theory to an embrace of ‘governance’, a theoretical move possessing many seeming advantages in light of the non-existence of postnational let alone global stateness. ⁵

Notwithstanding its myriad virtues, Ferrara’s version of the move still suffers from some ambiguities. Although Ferrara initially views governance and its ‘absence of sanctions’ as sharply distinguishable from government, he soon qualifies this claim: indirect sanctions, he tells us, would still operate. In fact, some ‘indirect’ sanctions would probably involve the prospect or at least possibility of state coercion. On Ferrara’s interpretation, the UN ‘Security Council can be said to be in possession not of the monopoly of the legitimate use of military force but of the monopoly of attributing legitimacy to the use of military force on the part of any state actor for purposes other than state defense’ (DH: 174). Although dependent on Security Council (SC) approval, individual nation-states would still control police and military force; the SC would oversee and legitimize its deployment other than in cases of self-defense. When push comes to shove, the capacity to mobilize coercive power still potentially plays a crucial role. Ferrara describes governance as aiming to ‘orient without compelling’ and ‘coordinate without ruling’, even though the real possibility of compulsion (and ruling) – if necessary, by forceful means – has hardly vanished (ibid.: 173, 175). The point instead is that its mobilization would rely on a complex and multi-layered global political ‘system’ that could probably thrive only if nation-states willingly subjected their oftentimes daunting instruments of coercion to postnational (and sometimes global) institutions like the SC.

Here an ‘indirect’ – and admittedly highly decentralized – manifestation of stateness arguably emerges from the shadows of so-called ‘governance’, for the familiar reason, widely discussed in the empirical literature, that effective governance generally operates in the shadows of government. Governance should not be contrasted with government or stateness, as Ferrara seems to believe, but instead conceived as welded to it in complicated and oftentimes parasitical ways. To be sure, this model would diverge from stereotypical (and ideal-typical) hierarchical Hobbesian and Weberian models of government. However, I am not convinced that it would necessarily represent a qualitative break from some recognizable features of modern stateness, a complex empirical nexus that has taken a stunning array of historical instantiations, some of which seem at most distantly related to Weberian preconceptions. ⁶ As the legal theorist Frederick Schauer has also recently reminded us, ‘[l]aw may have the power to use force, but how and when it does so are complex matters involving overlapping psychological, sociological, political, economic, and moral considerations’. ⁷ Even in the context of relatively well-integrated nation-states, legal sanctions can take astonishingly complicated – and obviously oftentimes indirect – forms.

Because of his understanding of democracy as ethos, law sometimes appears to get reduced to moral suasion, coordination and persuasion. This leads Ferrara to downplay the reality that effective legal regulation, especially under the conditions of hyperpluralism, will sometimes depend on the possibility of coercion and, yes, force. Recognizing this point hardly requires subscribing to crude Hobbesian or Weberian views of the state, or to an obsolescent notion of law as a ‘gunman writ large’. Nor does it deny the reality of non-coercive legal coordination: individuals and groups often abide law for reasons that have nothing to do with the possibility of coercive intervention. Yet it does entail acknowledging that meaningful legal coordination will occasionally require restraining individuals and social groups in contexts where they would prefer to act illegally, and otherwise might possess the de facto capacity to get away with doing so. Schauer, who has recently performed the invaluable service of sorting out so many of the intellectual muddles surrounding this issue, summarizes the key point nicely:

In equating law with coercion – the threat of punishment or some other ‘evil’ – Austin was simply wrong. Law does much else besides control, threaten, punish, and sanction, and law does not always need coercion to do what it can do. But the fact that coercion is not all of law … is not to say that it is none of law or an unimportant part of law. Relegating the coercive aspect of law to the sidelines of theoretical interest is perverse. ⁸

Schauer’s point seems even more apt in the context of a complex, multi-layered, ‘multivariate’ postnational democracy. Do we really believe that moral suasion or ‘orientation’ without compulsion would consistently suffice there to guarantee legitimate as well as binding general rules? As I have tried to argue in another context, there are grounds here for skepticism. ⁹

Like many others with similarly praiseworthy cosmopolitan instincts, Ferrara is reluctant to acknowledge how stateness and self-government are likely to remain intermeshed. ¹⁰ The constructive task at hand, I would suggest, is for advocates of postnational democracy to figure out how both existing and novel forms of stateness can serve rather than undermine democracy ‘beyond the nation state’. Ferrara takes us only so far in doing so.

After demoting stateness’ place within self-government, Ferrara moves to offer an alternative account of democratic dualism, as originally conceived by Bruce Ackerman, sketching the outlines of a postnational democratic constitutional order in which, he revealingly notes, it might still ‘be affirmed that the citizens obey laws of which they are somehow the authors’ (DH: 177; emphasis added). The key intuition here is that messy and initially unattractive decision-making features of global governance might in principle be seen as democratically legitimate

… if and only if (a) they take place within the boundaries of ‘constitutional essentials’ that meet with the consent of free and equal citizens as manifested in referenda or in more indirect but still recognizable ways and (b) some recognizable forms of accountability remains in place. (DH: 178)

To be sure, this represents a potentially fruitful starting point for thinking about how we might institutionalize deliberative democracy at the global level. Unfortunately, Ferrara says relatively little about its contours, again perhaps because of his strong methodological preference for matters of democratic ethos over those of so-called proceduralism. Obviously, a great deal hangs on what is meant here by ‘recognizable’ forms of free and equal consent and ‘recognizable forms of accountability’. Much of the present-day worry among hard-nosed empirical analysts of ‘real-existing’ global governance, of course, not only stems from the fact that present forms of global governance often lack such mechanisms for accountability, but that it often remains difficult to see how they could be successfully realized. So, at the very least, much more remains to be said.

More worrisome perhaps are Ferrara’s occasional suggestions in this context and elsewhere that postnational instantiations of deliberative democracy might dispense with some familiar decision-making devices: ‘there is nothing insurmountably problematic in conceiving of democracy as a mode of coordination of collective action that need not be based on the formation of majorities through a formal voting procedure’ (DH: 177). If by this Ferrara means that postnational democracy will need to institutionalize majority (and also counter-majoritarian) mechanisms in different ways and combinations than existing nation-states, or that we need to engage in some creative institutional thinking, his point seems sound enough. If instead he intends to suggest that at the global level we should be prepared to jettison conventional democratic mechanisms and procedures in favor of soft law or governance practices, for example, based on benchmarking and moral suasion, the argument is more troublesome. Even if postnational democracy will necessarily represent a more indirect instantiation of democratic authorship than found in the nation-state, as Ferrara rightly suggests, it will still surely need to make use of many tried and tested democratic procedures (ibid.: 181). Although I cannot fully defend this point here, their relationship to basic components of deliberative democracy is hardly tangential. In many cases, they are also essentially linked to the democratic ethos.

Anyone committed to reinvigorating democracy in our global age has much to gain from Alessandro Ferrara’s hugely valuable new book. Even if in the final instance Ferrara’s reconstructed democratic theory generates as many unanswered questions as those it successfully answers, nobody can legitimately ignore this impressive intellectual product of many years of deep reflection and scholarship. Ferrara’s Democratic Horizon represents a vital contribution to democratic theory deserving of a wide readership for many years to come.