A militant defence of democracy in hard times

At the end of December 2019, a New York Times journalist published a much-read article with the title ‘Democracy Grief is Real’. ¹ Reflecting on the ‘climate grief’ experienced by climate scientists and environmentalists who watch in sadness and rage as natural habitats, animal species and the planet itself are irrevocably damaged, Michelle Goldberg wrote that something similar was happening in the years since Donald Trump’s election and the growing rise of autocratic regimes throughout the world. Referring to the multiple funeral orations to democracy published by political scientists with titles such as How Democracies Die or How Democracy Ends, ² Goldberg nonetheless refused to join the mourners at the funeral. ‘But despair is worth discussing’, she wrote and concluded, ‘Left to fester, it can lead to apathy and withdrawal. Channeled properly, it can fuel an uprising…Democracy grief isn’t like regular grief. Acceptance isn’t how you move on from it. Acceptance is itself a kind of death’.

In her new book Cristina Lafont refuses to accept democracy grief and gives a militant defence of the ideal of democratic self-government without the shortcuts accepted by other democratic theorists. Lafont’s book is a major contribution to a wide-ranging debate about democratic theory and practice that has unfolded in the last decades. Her goal is to defend ‘a participatory interpretation of deliberative democracy on the basis of an ecumenical ideal of self-government’, by which she means, ‘an interpretation that can be endorsed by democratic citizens with different views about why democracy is valuable, how it relates to other value ideals, and so on’ ³ (DS, 17). Three positions in particular are singled out for failing to live up to the task of defending the democratic ideal: the deep pluralist position which denies that substantive disagreements can ever be overcome; the epistocratic position aimed at overcoming citizens’ ignorance; and the lottocratic position, aiming to improve the quality of deliberation among the citizenry.

Does Lafont succeed in defending the deliberative democratic ideal against the scepticism that deep pluralism gives voice to? Does her capacious model of deliberation, which appears to leave both the method and the goal of deliberation somewhat open and fluid (‘changing hearts and minds on contentious political issues’), convincingly show how a post-deliberative consensus on substantive matters may emerge? Whereas deep pluralists believe that disagreements run so deep that they can never be overcome, Lafont contends that ‘post-deliberative consensus (e.g. on fundamental issues of justice) is a meaningful aim of political deliberation’ ⁴ (DS, 36, emphasis in the text).

An argumentative strategy frequently deployed against the deep pluralist position by defenders of constitutional democracy is to marshal the Rawlsian distinction between conceptions of the good as opposed to conceptions of the right and justice that must undergird the institutional practices of constitutional democracies so as to enable cooperation among citizens over time. Deep pluralists scramble these distinctions, but unlike communitarian critics of liberalism who had argued that there could be no sense of the right independently of some conception of the good, deep pluralists contend that precisely because democratic participation is central, rights and constitutional essentials are subject to as much contention as values, world views, and conceptions of the good life. Their objection is not that every conception of rights presupposes some conception of the good but that rights and constitutional essentials are what democratic disagreement is all about.

Lafont’s engagement with this challenging position is detailed and extensive, and three of her objections to the deep pluralists are worth singling out: the reflective instability of the deep pluralist position (DS, 45); the status quo bias of this position (DS, 50); and its ‘hermeneutic platitudes’ (DS, 60 ff.).

The charge of ‘reflective instability’ states that deep pluralists cannot account for the internal point of view of participants in deliberative processes who continue to argue with one another even after they accept that a decision may be procedurally fair but substantively wrong. Even if procedurally correct majoritarian solutions may be the best under the circumstances participants do not have to concede that they yield substantively correct decisions. Yet, let us ask, in matters of politics does a procedure-independent criteria of substantive correctness exist such as would enable us to make sense of this intuition shared by many participants? While Lafont rejects naïve realism that there is ‘a correct’ solution independent of argumentative practices in ethics as politics, her insistence that agreement based on good reasons around substantive issues of politics are possible and plausible, shifts the weight of her claims towards spelling out what those good reasons may be. I agree with Lafont that reflective instability is an important moral and political experience among participants we need to account for; but it is unclear that she can endorse the distinction between procedure and substance without a commitment to some further criteria of correctness in deliberation or some substantive values that are not explicitly identified. Lafont is not a thinker who takes shortcuts; thus she discusses this issue as well: ‘The more public deliberation meets standards of public-spiritedness, reciprocity, mutual respect, and so on, the more participants in such deliberation are subject to the force of the better argument’ (DS, 104, my emphases).

Deep pluralists will object that postulating such strong standards as public-spiritedness, reciprocity and mutual respect is a deeply controversial move; instead, we should consider a form of morally attractive deep compromise. Richard Bellamy, for one, believes that since for some citizens any kind of bargaining or accommodation under majoritarian constraints would be wrong, one needs to make a deep compromise. As he explains, ‘compromises need not be seen as “shoddy” or “unprincipled.” Instead they can be seen as products of mutual recognition by citizens of the reasonableness of their often divergent points of view by seeking to accommodate these various perspectives within a coherent programme of government’ (quoted in DS, 46). Lafont objects that from the perspective of a majoritarian position, there is no assurance that majorities will accept such deep compromises and be ready to incorporate others’ point of view into their own. Rather they may just treat them as losers and move on (DS, 49). Deep pluralism cannot reconcile the ‘substantive fairness of deep compromises’ with the ‘procedural fairness of majoritarianism’ (DS, 50). Furthermore, this position reveals a status quo bias by asking groups who feel deeply wronged nonetheless to accept compromise. ⁵ For Lafont, there can be no compromise around fundamental rights.

Is Lafont’s objection to those who defend ‘deep compromises’ based upon a theory of fundamental rights then? But this would also not help, because here is how Waldron would object to a theory of fundamental rights: ‘Theorists of rights…are committed to the assumption that those to whom rights are assigned are normally those to whom decisions about the extent of rights can be extended’. ⁶ Waldron calls this view, ‘a rights-based critique of constitutional rights’, and finds it odd that we would consider individuals capable of exercising their rights while also removing from them the capacity to decide about the extent and limits of those rights. Only the people’s elected representatives can justly exercise such self-government in and through legislation. Lafont does not disagree with this view but she has one more objection against the deep pluralists.

She accuses this position of trading in ‘hermeneutic platitudes’: it is all well and good to uphold the dignity of legislation and ideals of self-government, but it is only when certain rights are respected, such as the equal right of all citizens and residents to have a voice in such processes, that we can we talk about ‘dignified legislation’ at all. Majoritarianism is a decision procedure which can be considered legitimate if and only if certain other presuppositions also hold, and foremost among them, respect for each others’ equal rights to participate in self-government. This requires qualifying mere majoritarianism since as a decision procedure it does not stand alone but is only defensible against the background of unarticulated hermeneutic assumptions. Lafont writes: ‘In contrast to pure proceduralism, modified majoritarianism is a recursive principle’ (DS, 58, emphasis in the text).

The introduction of recursivity has wider implications which Lafont does not draw out. At any point in time in the democratic conversation, we are in the midst of recursive iterations about the meaning, extent and validity of our rights claims as well as visions of the good life. I have named such processes ‘democratic iterations’. ⁷ Iteration is never a repetition. Every iteration transforms meaning, adds to it in ever so-subtle ways. Even in the case of authoritative normative documents such as constitutions, declarations of rights or transnational conventions, legal interpretation is an iterative process of making sense of an authoritative original in view of new and different contexts. ⁸

Waldron’s and Lafont’s frameworks would be enriched by the inclusion of such an iterative view. If, as Waldron argues, citizens must be viewed not only as rights-bearers but also as their interpreters, then certain interpretations of rights such as equality of participation in deliberative and voting procedures must be always already presupposed even while we continue to disagree about what such equality may mean. We are always in medias res in the democratic conversation.

Lafont vacillates between embracing an iterative view versus subscribing to a more substantialist distinction between ‘disagreements about justice and rights versus disagreements about ordinary policies’ (DS, 59). While without some procedural safeguards majoritarianism itself makes no sense, Lafont seems to neglect that the safeguards of the procedure are themselves open to interpretation and disagreement recursively and iteratively. Democratic iterations may generate settlements over time (DS, 59) but it is more likely that contentious objections and a demand for reinterpretation will trigger iterations not only in the democratic public sphere but may send citizens appealing to judicial review processes as well.

The final step in Lafont’s engagement with deep pluralism is her most surprising and original defence of judicial review processes. Whereas judicial review, whatever institutional form it takes, seems to be a paradigmatic case of epistocracy, that is judgement by experts, Lafont argues that constitutional review and deliberative democracy in fact are quite reconciliable. Side-stepping issues of institutional design, she claims that the real significance of judicial review can only be judged diachronically, and not simply when a judicial institution either strikes down or upholds a piece of legislation, as the case may be. She defends ‘participatory constitutionalism’, and argues that, ‘As long as citizens may question the constitutionality of any statute by initiating a legal challenge, they can structure public debate on the statute in question as a debate about fundamental rights and freedoms, and therefore a debate in which the priority of public reasons must be respected…judicial review…facilitates the constitutionalization of public political debate on any laws and policies that touch upon fundamental rights and freedoms’ (DS, 226, emphasis in the text).

Whether such constitutionalization would further rather than stifle the democratic deliberative ideal is unclear, since they may also lead to the depoliticization of many deep issues regarding rights-claims. Take a controversial example: in countries such as the United States, where a woman’s right to abortion was established by a majority Supreme Court decision in Roe v. Wade on the basis of some ingenious but debatable interpretation of the principle of privacy, this right is at the present politically less secure than in Catholic countries such as France and Spain, where the right to abortion was gained by parliamentary majorities in long and drawn-out political battles. Constitutionalization may be vulnerable to the politically changing composition of high or supreme courts of the land. Lafont could object that the same is true of shifting democratic majorities in legislative bodies as well. Hence, the value of constitutionalization cannot lie in the guarantees that it (temporarily) offers to vulnerable minorities but rather in the manner in which it provokes public debate on constitutional essentials by enabling citizens to own up to them.

It is all the more surprising then that in Lafont’s view only constitutional courts but not legislature or the public sphere should be fora for debating constitutional principles (DS, 235). This conclusion is puzzling, particularly in view of Lafont’s defence of participatory constitutionalism. Just as discussions of fundamental rights and the policies by which to realize them blend into each other, so do discussions about constitutional principles and politics. Every controversial political debate in contemporary societies such as immigration levels, taxation and the environment are about principles as well as politics, rights as well as policies. In many jurisdictions, constitutional courts may have the final but not the ultimate say. Processes of weak judicial review usually return a controversial piece of legislation back to the legislatures, indicating that legislatures are the appropriate fora for the discussion of principles.

What is missing in Lafont’s account is a further clarification of loop-back processes between judicial instances and the public sphere, and in particular the role of social movements and civil associations. Most controversial decisions of our times about abortion, same-sex marriage, immigration rights, free speech rights, non-discrimination and so on are brought in front of the courts not by individuals, but by organized civil society groups, who often act strategically to get the courts to rule in favour or against a particular piece of legislation.

This is also why Lafont’s critique of lottocracy overreaches the mark. There is something deeply appealing about the lottocratic idea that the burdens of citizenship should fall equally, that is, by lot on everyone’s shoulders at some point in time. Whatever the final contribution of mini-deliberative publics and citizens’ assemblies may be to decision-making processes, such democratic experimentalism is essential in our times of deep democratic sclerosis. Democratic experimentalism need not be juxtaposed to popular constitutionalism, for citizens must not only ‘put on robes’ but they must also be co-conveners of assemblies and co-legislators in them.

Early on in the book, paraphrasing Adorno’s phrase in Negative Dialectics that the work was an expression of solidarity with metaphysics ‘at the time of its fall’ (quoted in DS, 5fn14), Lafont concedes that democracy sceptics may see her ‘project as a futile attempt…to express solidarity with democracy at the time of its fall’ (DS, 5). I disagree, her book will be an indispensable and invigorating interlocutor for all those interested in democratic theory and practice in our times.