Lost in translation: The normative and the historical

Sovereignty Across Generations begins with what I take to be a wager, namely, ‘to articulate a theory of democratic sovereignty and constituent power grounded in John Rawls’s political liberalism’. ¹ That of course gives us some indication of the scope of the project. However, it is the next sentence that is most interesting: ‘Embedded in his political philosophy and implicit constitutional theory lies in unsurpassed capacity to offer a normative, yet non-foundationalist, account of the justness and legitimacy of political and legal orders’. ² Alessandro Ferrara uses the words ‘implicit’ and ‘embedded’ to signify how he will proceed. I presume that means he will draw out the meaning that has not been heretofore revealed in Rawls’s constitutional theory. However, my curiosity doesn’t stop here because he goes on to tell us exactly what he thinks is the capacity of the theory, namely, ‘to give us a normative account of justice and legitimacy of political and legal orders’. ³ It seems to me that the use and promise of the term ‘normative’ gives us the clue to how the book should be interpreted. In other words, this book portends to be a translation of Rawls’s more historical, pragmatic and sociological, in the sense of political sociology, orientation. My major question regarding this project: is there anything lost in translation?

Now, I realize that this is a delicate question because it could be understood to mean that I’m looking for a one-to-one correlation between what Rawls has said and what Ferrara is taking it to mean. But that would be a wrong interpretation of my question. I am aware that the term ‘capacity’ was used which I take to mean that Ferrara would put himself at some distance from Rawls while at the same time affirming his work. However, what concerns me is that by translating Rawls’s historical work, which includes the very consideration of liberal constitutionalism as an historical phenomenon, something might be lost. So I qualify this question by indicating that I am quite aware that Rawls uses the term ‘normative’ particularly in later writings so the issue may be confusing. However, my contention is that at the very least we need a clarification regarding the meaning of normativity and its relationship to the historical in Rawls’s work.

With this wager in mind let me turn to what appears to be the original question of the book, namely, ‘why political liberalism?’ ⁴ The question, which has a threefold answer, stresses normativity in each part beginning with ‘the idea that dualist democracy has (i) the normative twist impressed on the dualist conception of democracy that Rawls borrows from Ackerman, (ii) an innovative understanding of legitimacy and (iii) a non-foundationalist view of normativity anchored in public reason’s dual standard of the “reasonable” and the “most reasonable.”’ ⁵ To the three breakthroughs I add a fourth on which they are all dependent, namely, Rawls’s innovative interpretation of political history or to put it in his term, the history of the political.

The first breakthrough, the idea of dualist democracy with a normative twist, means that while Rawls is said to accept and affirm Ackermann’s interpretation of the dualist democracy, he departs from Ackerman’s more relativist interpretation by way of affirming ‘entrenchment’, the idea that certain constitutional principles could not be altered. This move has normative implications to be sure but the foundation for it is established by political history in Rawls’s terms, separation of the emerging domain of the political from the comprehensive. The example is that certain political values that emerged historically. For instance, the Virginia statute for religious freedom established in 1777 leading to the First Amendment to the United States constitution. ⁶ This would be an example of what Rawls noted in Political Liberalism that ‘values of the political are very great values and hence not easily overridden’. ⁷ And as we know from reading the introduction to the 1993 edition of Political Liberalism that these values were worked out through the religious conflicts that developed after the Reformation; hence, the so-called normative twist has a very strong historical foundation.

Regarding the second breakthrough, the liberal principle of legitimacy, I agree with Ferrara that the introduction of that principle ‘constitutes nothing less than a philosophical revolution within the liberal-democratic revolution’. ⁸ I also agree with Ferrara’s interpretation of the liberal principle of legitimacy as legitimation by constitution, an innovation appropriately attributed to Frank Michelman, and I agree that the liberal principle of legitimacy can be interpreted, in accord with justices fairness, as a deflection. ⁹ If we revert to the historical question upon this normative principle was constructed, the answer seem obvious, that is, the production of a written constitution in 1787. And it was one of the greatest innovations of John Rawls to make constitutional interpretation a central theme in his political philosophy. ¹⁰ On this point I am in total agreement with Ferrara when he analyzes the phenomenon of consent of the governed to the kind of consent associated with the liberal principle of legitimacy from John Locke on.

The third breakthrough, the revolution of the most reasonable, deals with pluralism and the idea of reasonability. I agree that the idea of the most reasonable plays a major normative role in political liberalism but here I fail to see what the allegory of the cave does to justify it. Ferrara starts this discussion with the proposition that pluralism is problematic for the normative philosopher. That means that we are between either Rortyian relativism or a comprehensive affirmation of the one true position. That is, between relativism or absolutism. For Ferrara, justice as fairness, with its notion of the ‘reasonable’ and the ‘most reasonable’ is the best solution to resolve the problem of pluralism. In order to make this point, Ferrara takes us to the dark shadows of Plato’s cave to provide an example of a resolution to the problem using a Rawlsian methodology. The first problem I have with this thought experiment is it presumes Plato’s interrogators are very modern, having read W. M. Sibley’s article describing the distinction between the reasonable and the rational. ¹¹ Hence, we see the platonic cast standing sideways at the doorway to the cave coming to reasonable agreement regarding the nature of the outside world. Improbable. The second problem I have regards the subject to which their concluding remarks are addressed, namely, the nature of the reality that exists in the outside world. Frankly this is a problem for science and not for politics. ¹² If we move from the dark recesses of Plato’s cave to the realm of a world framed by the existence of a written constitution, we might understand what most reasonable for us means. The phrase ‘most reasonable for us’ refers to a world shaped by democratic culture.

In the preceding pages I have been arguing that the wager in Sovereignty Across Generations has been to transform elements of Rawls’s more historical orientation into a consistently normative discourse. The issue that I have raised is that something might be lost in translation. There is a section of the book where the reverse seems to be going on, namely, a normative problem is given an historical solution. This is the classical question of origins transferred to constitutional theory in the form of a question about legitimacy, referred to as the paradox of constitutionalism. The paradox of constitutionalism is defined as ‘How can a people constitute itself by adopting a constitution if in order to adopt a constitution it must already exist?’ ¹³ This theoretical problem is said to be resolved by an historical reconstruction that argues that a given ethnos can be transformed into a demos. Ferrara, relying to some extent on the recent work of Bruce Ackerman, argues that it is by becoming political that a demos is constituted and in recent times (roughly the last two centuries) that means through developing a constitution. To clarify the issue Ferrara probes the discourses of Lindahl, Ricoeur, Larmore, Korsgaard and others on self-constitution. The result is that the transition amounts to ‘a commitment to share commitments’, which seems adequate as far as it goes but that is not far enough. ¹⁴ As the development of philosophy in the twentieth century illustrates self-constitution is really about time and temporality, that is, the uniting of the past and future in a present which become the basis for projections regarding the future. Constitutions are also about transformations in time and as the consequence the reconstruction of a political project on new grounds. No doubt this would be a difficult task to work out and it seems questionable whether a normative theory can be developed but given the possible limitations of the project it has great promise and it takes us beyond the framework of political liberalism. ¹⁵

Finally, I regard Sovereignty Across Generations to be an extraordinary work fully deserving of the honors that have been bestowed upon it. The greatness of the book is to be found not only in its fidelity to the Rawlsian project but in its willingness to go beyond it.