Compromises in Democracy [1st ed.] 9783030408015, 9783030408022

Table of contents :
Front Matter ....Pages i-xv
Introduction (Sandrine Baume, Stéphanie Novak)....Pages 1-17
Compromise and the People’s Two Bodies (Alin Fumurescu)....Pages 19-46
Compromise and Majority Rule: How Their Dynamic Affects Democracy (Patrick Overeem)....Pages 47-67
Compromise and Publicity in Democracy: An Ambiguous Relationship (Sandrine Baume, Stéphanie Novak)....Pages 69-94
Agonistic Compromise (Manon Westphal)....Pages 95-120
Compromise Between Incommensurable Ethical Values (Martijn Boot)....Pages 121-147
Cultural Compromise (Dominik Gerber)....Pages 149-173
Militant Consociational Democracy: The Political Exclusion of the Extreme Right in Belgium (Matthijs Bogaards)....Pages 175-200
Towards a Sociology of Social Compromise: Social Compromise Amongst Victims of Conflict in Northern Ireland, South Africa and Sri Lanka (John D. Brewer)....Pages 201-223
Back Matter ....Pages 225-242

Citation preview

PALGRAVE STUDIES IN COMPROMISE AFTER CONFLICT

Compromises in Democracy Edited by  Sandrine Baume · Stéphanie Novak

Palgrave Studies in Compromise after Conflict

Series Editor John D. Brewer Queen’s University Belfast Belfast, UK

This series aims to bring together in one series scholars from around the world who are researching the dynamics of post-conflict transformation in societies emerging from communal conflict and collective violence. The series welcomes studies of particular transitional societies emerging from conflict, comparative work that is cross-national, and theoretical and conceptual contributions that focus on some of the key processes in post-conflict transformation. The series is purposely interdisciplinary and addresses the range of issues involved in compromise, reconciliation and societal healing. It focuses on interpersonal and institutional questions, and the connections between them. More information about this series at http://www.palgrave.com/gp/series/14641

Sandrine Baume  •  Stéphanie Novak Editors

Compromises in Democracy

Editors Sandrine Baume Centre for Public Law University of Lausanne Lausanne, Switzerland

Stéphanie Novak Ca’ Foscari University of Venice Venice, Italy

Palgrave Studies in Compromise after Conflict ISBN 978-3-030-40801-5    ISBN 978-3-030-40802-2 (eBook) https://doi.org/10.1007/978-3-030-40802-2 © The Editor(s) (if applicable) and The Author(s) 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: FrankRamspott/Getty This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Acknowledgements

Thanks are due first and foremost to the contributors of this volume with whom we enjoyed having a fruitful, intellectual dialogue. The book benefited greatly from the input and encouragement we received from participants attending workshops on compromise we organized in April 2017  in Lausanne and in August 2018 during the ECPR General Conference in Hamburg. We also wish to extend a warm thank you to John Brewer, general editor of Palgrave Studies in Compromise after Conflict, for welcoming our volume to his series. Thanks are also due to Josie Taylor, commissioning editor, and Liam Inscoe-Jones, editorial assistant, at Palgrave Macmillan, for their assistance with all book production matter. We are also grateful to the Faculty of Law, Criminal Justice and Public Administration of the University of Lausanne for supporting this academic project and especially to Christine De Bernardis and Doriana Ferreira, who contributed greatly to the organization of the workshop held in Lausanne. Finally, special thanks go to Yannis Papadopoulos and Laetitia Ramelet for their insightful suggestions across this volume. Sandrine Baume Stéphanie Novak

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Contents

1 Introduction  1 Sandrine Baume and Stéphanie Novak 2 Compromise and the People’s Two Bodies 19 Alin Fumurescu 3 Compromise and Majority Rule: How Their Dynamic Affects Democracy 47 Patrick Overeem 4 Compromise and Publicity in Democracy: An Ambiguous Relationship 69 Sandrine Baume and Stéphanie Novak 5 Agonistic Compromise 95 Manon Westphal 6 Compromise Between Incommensurable Ethical Values121 Martijn Boot 7 Cultural Compromise149 Dominik Gerber vii

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8 Militant Consociational Democracy: The Political Exclusion of the Extreme Right in Belgium175 Matthijs Bogaards 9 Towards a Sociology of Social Compromise: Social Compromise Amongst Victims of Conflict in Northern Ireland, South Africa and Sri Lanka201 John D. Brewer  Afterword: Democratic Politics, Compromise and the Challenge of Populism225 Dominique Leydet Bibliography235 Index237

Notes on Contributors

Sandrine Baume  is Associate Professor of Political Theory and History of Political Thought at the Centre for Public Law of the University of Lausanne. Her research focuses mainly on democratic theory. Her recent work concentrates on the imperative of transparency in public affairs, the legitimacy of political parties, the value of compromise in democracy, and the impact of misinformation on the quality of the democratic process. Her publications include: “Rehabilitating political parties: An examination of the writings of Hans Kelsen”, Intellectual History Review, 2018; (with Yannis Papadopoulos), “Transparency: From Bentham’s inventory of virtuous effects to contemporary evidence-­based scepticism”, Critical Review of International Social and Political Philosophy, 2018; “What place should compromises be given in democracy?”, Négociations, 2017; and Hans Kelsen and the Case for Democracy, 2012 (edited with V. Boillet and V. Martenet), Misinformation in referenda (Routledge, 2020). Matthijs Bogaards  is a visiting professor in the Department of Political Science at the Central European University in Budapest, Hungary. He previously held positions in the United Kingdom, Germany, and South Africa. His research focuses on the challenges of democracy in divided societies, comparative democratization, political violence, and i­ nstitutional design. His latest book is a comparative study of consociational parties in seven countries around the world. ix

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Martijn Boot  is an assistant professor at University College Groningen, the University of Groningen in the Netherlands. Prior to coming to Groningen, he was an associate professor at Waseda University in Tokyo, Japan. He obtained his DPhil from the University of Oxford. He specializes in political philosophy and ethics and his work appeared in a variety of international peer-reviewed journals. His book, entitled Incommensurability and Its Implications for Practical Reasoning, Ethics and Justice (Rowman & Littlefield International) is the result of research on incommensurability of values and its implications for justice. John D. Brewer  is Professor of Post Conflict Studies and Senior Research Fellow in the Senator George J Mitchell Institute for Global Peace, Security and Justice at Queen’s University Belfast. He was awarded an honorary DSocSci from Brunel University in 2013 for services to social science and the sociology of peace processes. He holds the honorary position of Professor Extraordinary at Stellenbosch University (2017–). He is a Member of the Royal Irish Academy (2004), a Fellow of the Royal Society of Edinburgh (2008), a Fellow in the Academy of Social Sciences (2003), and a Fellow of the Royal Society of Arts (1998). He has held visiting appointments at Yale University (1989), St John’s College Oxford (1991), Corpus Christi College Cambridge (2002), and the Australia National University (2003). He has been President of the British Sociological Association (2009–2012) and is now Honorary Life Vice President. He has been a member of the Governing Council of the Irish Research Council and of the Council of the Academy of Social Science. In 2010 he was appointed to the United Nations Roster of Global Experts for his expertise in peace processes. He is the author or co-author of sixteen books and editor or co-editor of a further six. His books include: C. Wright Mills and the Ending of Violence (Palgrave 2003), Peace Processes: A Sociological Approach (2010), Religion, Civil Society and Peace in Northern Ireland (2011, 2013), Ex-Combatants, Religion and Peace in Northern Ireland (Palgrave, 2013), The Public Value of Social Sciences (2013), The Sociology of Compromise after Conflict (Palgrave), and The Sociology of Everyday Life Peacebuilding (Palgrave). He is General Editor of the Book Series Palgrave Studies in Compromise after Conflict and Co-Editor of the Policy Press Book Series Public Sociology.

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Alin Fumurescu  is an assistant professor in the Department of Political Science at University of Houston. He is the recipient of the American Political Science Association “Leo Strauss Award for the Best Dissertation in the Field of Political Philosophy” in 2013. His first book Compromise: A Political and Philosophical History (2013) was nominated CHOICE Top 25 Outstanding Academic Titles Published in 2013. It has been translated in Chinese and in Romanian. The sequel, Compromise and the American Founding: The Quest for the People’s Two Bodies was published in 2019 and shows how the distinct French and British understandings of representation and of compromise got intertwined throughout the American founding. Dominik Gerber  received his MA and PhD in Political Science from the University of Geneva and is an assistant professor at the Stockholm School of Economics in Riga. He teaches courses in political theory, political epistemology, and welfare economics. Previously he held a post-­ doctoral fellowship at Geneva as well as a doctoral research fellowship at the University of Rochester, funded by the Swiss National Science Foundation. His research interests include the analysis of the role of truth and knowledge in justifications of democracy, the accommodation of cultural pluralism in liberal constitutions, and the relation between distributive justice and economic institutions. His recent articles have appeared in journals such as the European Political Science Review and the American Journal of Legal History. He is working on a book project on the relation between culture and epistemology in democratic theory. In parallel, he is participating in a collaborative project (coordinated by Annabelle Lever at SciencesPo Paris) on the ethics of voting. Dominique Leydet  is a full professor at the Department of Philosophy of the Université du Québec à Montréal (UQAM) and director of the Centre de recherche interdisciplinaire sur la diversité et la démocratie (CRIDAQ). Her teaching and research interests are in the areas of democratic theory and the philosophy of law. In democratic theory, her work focuses on public deliberation, representation, and parliamentary institutions. She has recently published articles on these topics in journals such as the European Journal of Political Theory and the Journal of Political

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Philosophy. In the philosophy of law, her main interest is in legal pluralism, in the context of the relationship between the Canadian state and indigenous peoples. Her most recently published article on this topic has appeared in the University of Toronto Law Journal. Stéphanie  Novak is Associate Professor in Political Science and International Relations at the Ca’ Foscari University of Venice. She obtained a PhD in political science from Sciences Po Paris. She held research positions at the Collège de France, the European University Institute, and the Hertie School of Governance and was an associate professor at the European School of Political and Social Sciences (ESPOL) (Lille Catholic University). Her research interests include EU institutions, collective decisions, negotiations, informal norms, accountability, and transparency. She has published in various journals, including the Journal of Common Market Studies, the Journal of European Integration, and the Journal of European Public Policy. Patrick Overeem  is an assistant professor at the Department of Political Science and Public Administration and coordinator at the Philosophy, Politics, Economics (PPE) bachelor programme of the Vrije Universiteit in Amsterdam. He specializes in political theory, particularly political ethics and the history of political thought. He was awarded a 2016–2017 Early Career Fellowship by the Independent Social Research Foundation (ISRF) for the project “Compromise with Character: An Integrated Framework to Assess the Moral Quality of Political Compromises”. As a result of that project, he works on the relationship between compromise and other concepts, such as democracy, modus vivendi, virtue, and religion. Recent publications include “Aristotle’s politikos: Statesmanship, magnanimity, and the rule of the many” in Aristotle’s Practical Philosophy: On the Relationship between His Ethics and Politics (2017, eds. Emma Cohen de Lara & René Brouwer), “Compromise, value pluralism, and democratic liberalism” in Compromise and Disagreement in Contemporary Political Theory (2018, eds. Christian Rostbøll & Theresa Scavenius), and “Statesmanship beyond the modern state” in Perspectives on Political Science (2019, with Femke Bakker).

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Manon Westphal  is a post-doctoral research fellow at the Institute of Political Science at the University of Münster. She works on political theory and especially democratic theory. Her research focuses on contemporary challenges to democracy, agonistic and realist approaches to political theory, and questions of institutional design. Her dissertation Die Normativität agonaler Politik. Konfliktregulierung und Institutionengestaltung in der pluralistischen Demokratie was published with Nomos in 2018. She is co-editor of The Political Theory of Modus Vivendi (with John Horton and Ulrich Willems, 2019) and published articles and book chapters on topics such as agonistic democracy, political compromise, modus vivendi, institutional innovation, and the relationship of politics and law. Recent publications include Overcoming the Institutional Deficit of Agonistic Democracy (in Res Publica. A Journal of Moral, Legal and Political Philosophy, 2019), Institutions of Modus Vivendi Politics (in The Political Theory of Modus Vivendi, eds. John Horton, Manon Westphal and Ulrich Willems, 2019), and Compromise as a Normative Ideal for Pluralistic Politics (in Compromise and Disagreement in Contemporary Political Theory, eds. Christian Rostbøll and Theresa Scavenius, 2018).

List of Tables

Table 6.1 The difference principle and a reconciliation between fairness and greater welfare Table 6.2 The difference principle and large inequalities in incomes

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1 Introduction Sandrine Baume and Stéphanie Novak

Our book intends to focus on the specific link between compromise and democracy. If political compromises have played a significant role in our representative democracies, the nature of the relationship between compromise and democracy, generally, has raised tricky theoretical questions and generated ambiguous evaluations. Existing studies have tackled the ambivalent relationship between compromise and democracy from different angles.

We thank Laetitia Ramelet for her diligent proofreading and her insightful suggestions across this volume.

S. Baume (*) Centre for Public Law, University of Lausanne, Lausanne, Switzerland e-mail: [email protected] S. Novak Ca’ Foscari University of Venice, Venice, Italy e-mail: [email protected] © The Author(s) 2020 S. Baume, S. Novak (eds.), Compromises in Democracy, Palgrave Studies in Compromise after Conflict, https://doi.org/10.1007/978-3-030-40802-2_1

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On the one hand, there is a multitude of contributions (from various and sometimes divergent inspirations) pleading against political compromises in democracies (Baume and Papadopoulos 2019). First, compromises might be struck at the expense of essential (even universal) values. For this reason, compromise is sometimes deemed nihilist in essence (Hallowell 1944). Second, compromises might impact the consistency of values that political actors have to align with. A prominent representative of that line of thought, Dworkin, considers checkerboard laws a violation of principled coherence (1986: 184) because they regulate political differences by treating similar situations differently without a justification in principle (Dworkin 1986: 179). Third, compromises would generate, reveal or exacerbate inequalities (Ruser and Machin 2017) because compromisers would have different and unequal negotiation powers. Fourth, a widespread practice of compromise can diminish the quality of political debates because the number of political voices that are heard diminishes. Indeed, compromise solutions tend to rule out original and less consensual perspectives (Ruser and Machin 2017). Fifth, compromise would erase the conflictual dimension of politics, considered, notably by Mouffe, as paramount (1998: 13). On the other hand and by contrast with the preceding, there is a body of literature dedicated to the defence of compromise. These contributions are part of a movement in favour of the revalorisation of the practice of compromise in our democracies. Such a position is being pioneered by Kelsen, who considers that, in the face of the profound social divisions of class society in a democratic context, compromise constitutes a desirable issue (1927). To him, compromises play a crucial role in the moderation process between the majority and the minority, and although they do not fully meet the preferences of the minority, neither are they completely contrary to their wishes (Kelsen 2007: 288). In a word, compromise would best incarnate the principle of self-determination that is at the core of his democratic theory (Kelsen 2007: 288). In the same vein, Rostbøll affirms that “the reasons for compromise are inherent in the democratic ideal” (2017: 620) because compromise “respects the parties as joint participants in collective self-legislation, or, in short, as co-rulers” (2017: 629). By the same token, Bellamy (2018) asserts that in democratic systems and above all in culturally heterogeneous states, majority decisions

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are much more exclusive than compromises that are able to integrate minoritarian groups that would otherwise be eclipsed. A defence of compromise is also presented by Gutmann and Thompson (2014: 204), who state that, “If politics is the art of the possible, then compromise is the artistry of democracy”. Those contributions indeed play a crucial role in the revaluation of compromise in the face of a dynamic political polarisation in our democracies, as Gutmann and Thompson (2010: 1125) point out (while they focus on the American context, it is not unreasonable to understand polarisation as a widespread phenomenon in our contemporary age).1 Another kind of rehabilitation of the concept of compromise comes from defending the possibility of a non-strategic but principled compromise, notably when citizens “have principled reasons to compromise that are […] supererogatory” (Weinstock 2013: 552). Weinstock provides here an example of political communities, inclined to compromise in order to avoid the “winner-take-all” paradigm, which can be deleterious for minorities (Weinstock 2013: 552). Such a claim opposes May’s argument according to which political compromises are necessarily strategic (2005). Moreover, and from a different perspective from the preceding, other contributions attempt to clarify a map on good and bad—or just and unjust—compromises and to draw a line between them. Such evaluations appear notably by Margalit (2010), who raises the question of when a compromise should be morally prohibited, or, to put it differently, which compromises must be called “rotten compromises”, either because they support an “inhumane regime” (Margalit: 2010: 6) or because they deal with evil persons, such as Adolf Hitler (Margalit 2010: 22–23). Margalit rests his argument on examples that mostly relate to international relations, such as the Munich Agreement, the Yalta Conference or the Arab-Israeli peace negotiations. In the same vein, van Parijs (2012) contributes to the elaboration of distinctive criteria of a “good compromise”, while discussing three “conjectures”: a good compromise

 As mentioned by Mudde (2004: 544), “Populism presents a Manichean outlook, in which there are only friends and foes. Opponents are not just people with different priorities and values, they are evil !” 1

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would, first, be “honourable”2; second, “contribute to the progress of justice”; and third, be “Pareto-improving”. Even if Margalit’s and van Parijs’ explorations do not apply, in original intention, to democracies, we consider them pertinent in such a context. In fact, they are often discussed in studies of democratic decision-making (Bellamy 2012; Overeem 2017; Rostbøll 2017). In such a debate on the “fairness of compromise”, Wendt (2019) distances himself from Margalit (2010), notably challenging the perspective according to which achieving a compromise with “evil parties” is necessarily morally wrong.3 Political compromise in democracy generates paradoxes or strong ambiguities, according to us, for at least four reasons: first, because, as mentioned previously, compromise “carries opposing evaluating forces” (Margalit 2010: 6). Though compromise is sometimes considered “fundamental in democracy” (Gutmann and Thompson 2010), it is also perceived as a betrayal of principles. Tillyris exposes this paradox eloquently: “The claim that democratic politics is the art of compromise is a platitude but we seem allergic to compromise in politics when it happens” (2017: 476). To put it differently, though compromise is considered an indispensable source of stability in a democratic government4 and is inevitable in collective action (Carens 1979: 126), the idea of compromise struggles to find a place in political values. Second, such an evaluative or normative ambivalence related to compromise has to be linked to what Luban calls the “paradox of compromise” (1985: 414), showing that every compromise implies a partial realisation of the values or interests of the compromisers.5 Consequently, compromises can be paradoxically defended or rejected for the same reason: the partial realisation of the principle defended by the compromisers (see Baume and Novak, in this volume).  “Honourable” in the sense that it is “possible for both parties to save face vis-à-vis the outside world” (van Parijs 2012: 472). 3  Wendt suggests the following example: “imagine that a corrupt and brutal dictator wants financial support and international recognition, and offers his help in stabilizing the region and protecting some minority. Not achieving a compromise bears great risks: The dictator might feel free to behave in unpredictable ways that in the end might lead to instability and even war” (Wendt 2019: 2871). 4  “Stable form of government […] does not function through the rigid implementation of political programs” (Manin 1997: 211). 5  This evaluative ambivalence is expressed eloquently in Lowell’s phrase: “Compromise makes a good umbrella, but a poor roof ” (1902). 2

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Third, compromise generates another type of ambiguity, well described by Carens (1979: 123): on the one hand, compromise can be characterised as “a technique for settling conflicts” (1979: 123), and on the other hand, it is loaded with subjective evaluations and, in the common sense, most often deemed derogatory. These conceptions of compromise— technical and evaluative—are often indistinct, which generates an additional type of ambiguity (Carens 1979:123). Fourth, the vagueness surrounding the concept of compromise also relates to the fact that compromise is often not distinguished from other notions it is confused with, such as unanimity, consensus, coerced agreements, deliberation and bargaining. Before distinguishing compromise from other notions, we rely on the definition of interpersonal compromise given by May: his definition proceeds with the characterisation of the different components of the notion (2011: 583). In May’s words, it is “(i) a collective action concept involving (ii) support for an inferior position motivated by (iii) the presence of disagreement between parties”.6 May’s argument focuses on the underlying element of mutual concession in compromise, similarly to scholars such as Bellamy,7 Kelsen,8 Rintala9 and Van Parijs.10 One of May’s distinguishing features of compromise, “support for an inferior position” (2011: 583), allows compromise to be differentiated

 The core elements of compromise, mentioned by Wendt, are in line with May’s definition: “When making a compromise, two or more parties agree to an arrangement they regard as suboptimal, but as better than having no agreement at all. They establish a second-best arrangement because they disagree about what the best arrangement would be” (2019: 2856). 7  “According to the standard definition, compromise involves disagreement between two or more people who need to make a collective decision, in which all parties settle for less than they believe they are entitled to” (Bellamy 2012: 448). 8  “Compromise means favoring that which binds over that which divides those who are to be brought together. Every exchange and every contract represent a compromise because to compromise means to get along [vertragen]” (Kelsen 2013 [1929]: 102). See also Baume (2012). 9  Rintala describes compromise, in its positive meaning, as an “adjustment to the views of the other with the aim of common action” (1969: 327). 10  “To be able to say what constitutes a good compromise, we must first know what a compromise consists of. I shall here adopt a broad and value-neutral definition which is in line with the common usage of the French noun compromis and the English noun ‘compromise’: a compromise is an agreement that involves mutual concessions” (Van Parijs 2012: 467, emphasis in the original). 6

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from unanimity. “When parties reach consensus,11 they agree that a particular option is the best choice to make. When parties compromise with each other, they continue to regard other options as superior” (May 2011: 583). As a correlation, compromise necessarily involves a renunciation of the best option. In addition, compromise can be distinguished from coerced agreement because it is voluntary. When making compromises, “it is assumed that they [politicians] always have alternatives or could choose not to act at all” (Bellamy 2012: 449), and therefore, ceding to the demands of the other party is not their only option, unlike in cases of capitulation. Compromise must also be differentiated from deliberation, especially if the latter includes, as indicated in Habermas’ view, standards of rationality that have a certain objectivity (Habermas 1996: 147, 151, quoted by Cooke 2000: 952). The idea that deliberation maximises “the chances of getting to the correct or right decision, or at least getting as close to it as possible” (Estlund and Landemore 2016: 113) contrasts the characteristics of compromises. If defined essentially as mutual concessions, compromises do not guarantee any epistemic value.12 This differentiation between compromise and deliberation has been qualified by Richardson’s distinction between bare and deep compromises: the former, assimilated to modus vivendi, are closer to a bargaining logic, whereas the latter are closer to a deliberative process. If deep compromises open the possibility to reasonably revise ends (Richardson 2002: 147), bare compromises “do not involve any reconsideration of what is worth seeking for its own sake” (Richardson 2002: 147). Deliberativists, such as Deveaux, who argued in favour of compromises in multicultural contexts on the grounds of recognition and inclusion (Deveaux 2018: 164) refer most probably to deep compromises. Last, compromise should be distinguished from bargaining because the latter does not entail that each party  will agree to lose something. When actors bargain, they can attempt to maximise their self-interest  That is unanimity.  As mentioned by Cook: “On Habermas’s view […] public deliberation does not aim at compromises, it merely accepts them in situations in which agreement is not forthcoming; its aim is to produce results that are objectively rational” (2000: 952). 11 12

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and contend without yielding (Pruitt 2002); in the end, one side might concede nothing, while the other concedes on all points (Luban 1985: 414). Bargaining can lead to a compromise but it can also lead to the defeat of one of the parties or to a deadlock while compromise, as a decisional process, relies on a tacit or explicit agreement to lose something and make mutual concessions. Compared to the existing literature, the specific contribution of our volume lies in its attempt to tackle and challenge, first, paradoxes; second, widespread beliefs; and third, neglected aspects or blind spots related to the role of compromises in the specific context of democracies or democratisation. Such a multifaceted examination is realised by convening perspectives from various fields—political theory, political science, sociology and history of ideas. At the beginning of this volume, Chap. 2 by Fumurescu tackles a paradox that has already raised the attention of different scholars (Carens 1979; Richardson 2002; Tillyris 2017; Baume and Papadopoulos 2019) but solves it here in an unprecedented and convincing manner. Assuming that compromise has occupied an important place in the political sphere, why is compromise nowadays so often considered a sellout? Fumurescu advances the thesis that “the attitude toward compromise is heavily influenced by the understanding of political representation, which in turn is related to self-representation”. Fumurescu’s perspective leads to a historical exploration of these attitudes towards compromises. To this end, Fumurescu traces back to the medieval dual understanding of self, combining the forum internum (the inner self, the place of autonomy and authenticity) and the forum externum (the outer self, the membership). As “for the medieval individual, compromise could only involve the external, public self (forum externum)” and “never the inner, private self (forum internum)”, compromise raises “no fear of being compromised” and remains neutral or less loaded with subjective evaluations. The question that emerges immediately is the following: why has the “medieval” way of apprehending compromise—neither praised, nor rejected—lost its neutrality, to become more controversial? Since early modernity, Fumurescu shows that three distinct models have emerged, taking distance from the medieval apprehension of compromise: the British model that is dominated by “a centrifugal individualism, in which

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forum externum became the only reliable one”. In such a model, the people is understood “as a collection of equal individuals, united via a mutual compact or compromise”. In the French model, the private self prevails and “compromise loses its neutral meaning, being perceived as a threat to one’s identity”. Finally, the American case diverges from both French and British models by being shaped by a dual apprehension of the people and consequently an ambivalent attitude towards compromise. Fumurescu’s erudite historical scrutiny on attitudes towards political compromises greatly contributes to our understanding of the ambivalent perception of this decisional mode, oscillating between adhesion and rejection. Moreover, by stressing that the attitudes towards compromises are non-permanent, non-“fixed” and possibly “manipulated”, Fumurescu leads the way to a reconsideration of the relationship between compromise and other democratic values, such as publicity and accountability. Widespread beliefs are the point of departure of the contributions of Baume and Novak, Boot, Gerber, Overeem and Westphal. In their chapters, they assess widely shared ideas and often qualify them. The starting point of Overeem’s argument is that compromise and majority rule are usually considered core elements of democracy, but that at the same time, they “appear squarely at odds with one another” for several reasons, among them because compromise would be more inclusive whereas majority rule would be more exclusive (“the winner takes all”). Moreover, if compromise is considered time consuming and overall costly, majority rule would be simple and quick. Majority rule and compromise as two different decisional modes in democracy, have also led to two different democratic political systems: consensus democracies and majoritarian democracies (Lijphart 1984, 1999). The great merit of Overeem’s contribution is to question the intuition that both decisional modes would follow different paths. On the contrary, he shows how both decisional modes are closely related and how decisive their interwovenness is in the working of our democracies. Indeed, majority rule and compromise have the ability to impact each other: “Compromise is often chosen to prevent majority decisions”, whereas “a politics of compromise can be threatened by referendums” (Bellamy 2018, quoted by Overeem in this volume). Such an interplay between compromises and referenda was already convincingly elaborated and documented by Leydet (2004). To Overeem,

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the combination of compromise with majority rule creates “a dynamic that poses severe risks to the quality of constitutional democracy, in terms of democratic legitimacy, government effectiveness, and citizen trust”. If compromises are struck to prevent majority decisions, this can be perceived as a “democratic betrayal” and feed suspicion of elitism (Cheneval and el-Wakil 2018). However, according to Overeem and in line with Bellamy’s statement, in “regard to the protection of minorities” compromise generally does better than majority rule (Bellamy 2018: 315) because majority rule tends to create notably “persistent minorities of one or more segmented groups of citizens” (Bellamy 2018: 315). In Chap. 3 by Overeem, several institutional devices conceived to reduce the risk of the tyranny of the majority are assessed, regarding their desirability and their feasibility, such as self-government, integrative compromises13 and supermajorities. Chapter 4 by Baume and Novak assesses another widely shared idea: compromises and disclosure are usually deemed incompatible or difficult to reconcile because decision makers would be reluctant to make concessions in public. Interestingly, such a pretended incompatibility is invoked by both scholars and practitioners. This common sense goes with a paradox that is at the core of their argument: even when compromise is considered a legitimate political principle, for example in consensus democracies (Lijphart 1984), compromises conceived as decisional processes are still perceived as irreconcilable with publicity. Such a paradox leads the authors to explore the reasons exposed by the literature, according to which seclusion would favour political compromises. These reasons are here assessed and often qualified by the authors. For instance, the literature anticipates—without questioning it—that the public would necessarily disregard political actors who strike political compromises. However, one should not overlook the fact that representatives behave in accordance with what they perceive as the expectations of their constituents (Pruitt et al. 1986; Novak 2011; Novak and Hillebrandt 2020). This  According to Weinstock, integrative compromises occur “when parties integrate aspects of the others’ position into the final settlement. They accede in other words to aspects of the other’s position that had not been part of their initial position” (Weinstock 2013: 540). In opposition to integrative compromise, substitutive compromise occurs “when parties agree to something in order to arrive at a compromise that was not part of either’s initial position” (Weinstock 2013: 540). 13

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means that if representatives believe that their constituents are inclined to compromise, they will not avoid making concessions in public. This psychological mechanism explains why the compatibility between compromise and publicity might also depend on the type of democracy and the political culture it entails. Moreover, as shown by political sociologists, the secluded search for compromise might be triggered by representatives’ career concerns and their willingness to find arrangements with their peers rather than by the necessity to take into account the plurality and diversity of their constituents’ preferences. Re-discussing and qualifying the pretended incompatibility between publicity and compromise has serious consequences regarding the democratic legitimacy of the compromises struck because publicity is a prerequisite to the accountability of political actors. Chapter 5 by Westphal deals with another common idea: agonism would not easily coexist with compromise. Indeed, “agonistic democracy is often understood as being especially sceptical of compromise”. Against this apparent truism, she shows that there is a specific place for compromise in “agonistic democracy”, among political allies on the one hand, and among political opponents on the other hand. In both cases, compromises are strategic and emancipatory: first, compromises of both types enable people to pursue political goals that a noncompromising solution would have possibly prevented. Second, compromises among allies or opponents share a common “emancipatory nature”. Indeed, if political allies did not make concessions regarding their internal disagreements, they would often be “incapable of creating a counter-hegemonic political project”. Moreover, compromises among political opponents—between political actors pleading for the status quo and political actors asking for change—imply “concessions to the demands of the previously marginalised groups”. This also pushes in the direction of new emancipatory projects, even if they are only partially realised. Westphal’s rehabilitation of compromises in agonistic theories is of great importance in our perception of compromises. Interestingly enough, Westphal’s claim is above all challenging for agonistics themselves, who tend to undermine compromises in a democratic context because of a wrong assessment of their agonistic potential. Following Westphal’s line, we consider that agonists—among them,

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Mouffe—underestimate the possibilities that compromises offer to redesign the conflictual landscape. Chapter 6 by Boot also builds on a widespread idea according to which compromise has to be conceived as a trade-off between competing values. To him, such an approach relates to and reveals “misunderstandings about the nature of incommensurable competing values”. If most values—usually at stake in the pursuit of a compromise—are actually incommensurable, consequently, these values in conflict lack an equivalence relation and a trade-off point. Such a perspective makes obsolete, in our debates, all the common and widespread phrases, such as “making a trade-off, striking a balance, splitting the difference” that could give the illusion that it is conceivable to reach a “middle ground” when confronting (incommensurable) values and, finally, when compromising. Boot’s claim on incommensurable values and their lack of a trade-off point goes hand in hand with the assumption according to which there is no rational way to rank the conflicting values. This means that the use of public reason, when facing diverging values, does not lead to the same rankings and accordingly not to the same compromises. In that perspective, rational deliberation is not better equipped. Taking seriously the incommensurability of values and the impossibility of ranking them rationally, what are the consequences in terms of democratic compromises? To Boot, “with respect to recognition and preservation of plural (rankings of ) human values, local compromises may be preferred to global compromises”. Gerber’s understanding of cultural compromises also takes distance from a definition of compromise that would equate it with “splitting the difference”. It is a rich, political and demanding understanding of compromise that is mobilised by Gerber: parties involved in cultural compromises have to first internally “adjust their symbolic, moral, and epistemic frameworks to create a common interpretative framework” before compromising. This is one of the merits of Gerber’s contribution to draw our attention to that political phase that relates to internal compromises, whose democratic character also has to be assessed. Such a perspective goes with a nonessentialist perspective, considering cultural features as not “cast in stone, but contingent on intra-cultural power relations” and in that sense, “inherently political”. Symbols, rites and bans underlying

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cultural identities are actually subject to permanent renegotiations and lead to internal compromises, as well. In Chap. 7, Gerber agrees with Boot’s argument on the incommensurability of values and on the impossibility that derives from assessing compromises on a rational basis. However, Gerber points out the fact that the “value incommensurability” is not the only thorn in our side. Indeed, in our democracies, we face not only collisions of values but also conflicts of meanings of “symbolic forms for shared higher-order principles such as individual autonomy of self-ownership”. The burning question that the chapter raises is then the communicability between “different frameworks of symbolic understanding”, which the author defends as not only desirable but also feasible. Cultures are not “windowless monads” (Bernstein 2010: 378, quoted by Gerber) and are able to communicate with each other. Moreover, Gerber assumes that “compromise lends itself as an attractive decision-making mechanism in cases where cultures— politically conceived—disagree on matters relating to the value and public status of cultural symbols”. Chapter 8 by Bogaards begins with an unexplored paradox and oxymoron built on the notion of “militant consociational democracy”. How can this notion, apparently contradictory in its terms, make any sense if we assume, along Bogaards’ line, that first, “consociational democracies seek to pacify societal divisions through political inclusion and compromise” and, second, “militant democracies seek to neutralize threats to democracy and liberal values by excluding anti-system parties from power”? One possible answer to this question is obtained through scrutiny of the Belgian case, which incarnates “this perplexing combination of features” between inclusion and exclusion or, in other words, between consociational politics and politics of “cordon sanitaire”. The cordon sanitaire is made possible by an agreement among the main parties “to refuse cooperation with the extreme-right”, in the Belgian case, the Dutch-speaking Vlaams Belang and the francophone extreme right (Front National Belge). This also means that the mainstream parties refuse to compromise with parties that are not “deemed liberally democratic”. The Belgian case raises a second type of question, which goes well beyond this specific case and relates to justifications of “the deliberate exclusion of extremists in consociational democracies”. Such interrogations are echoed

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with controversies, on the one hand, on the effectiveness of such measures and the possible risk of increasing violence that they could generate (Minkenberg 2006; Capoccia 2005), and on the other hand, on the normative justifications of regulating pluralism in our democracies, knowing that such measures could hurt foundational values, such as tolerance and rights to free speech (Niesen 2002; Mudde 2004; Abts 2015). The questionability of extremists’ exclusion from consociational democracies leads the author to mobilise the literature on deliberative democracy and recent studies that have stressed the importance of encouraging dialogue between in- and outgroups (Caluwaerts and Reuchamps 2014, quoted by Bogaards in this volume). “Hearing the other side’” (Mutz 2006, quoted by Bogaards in this volume) might favour a tolerant mindset. Bogaards’ wish to crack the “wall of silence” between in- and outgroups relates to Gerber's assumption on the necessary communicability between different and opposite cultures (in this volume). Finally, Chap. 9 by Brewer explores a blind spot or neglected aspect in the literature on compromise: the sociological approach towards social compromises following conflict(s). Although the literature has amply addressed political compromise in conflict resolution (for instance in South Africa or Northern Ireland), there is not much about social compromises after conflict “once an acceptable political agreement has been settled”. Brewer’s main focus concerns “how people inter-personally learn to live together after conflict”. Social compromise is here considered a social practice. While political compromise “describes reciprocal agreements between parties to the peace negotiations in order to make political concessions sufficient to end conflict”, social compromise “involves people developing ways of living together, in which concessions form part of shared social life”. This distinction, once established, does not mean that both follow their own path in an independent manner—far from it. Brewer shows how both interplay in post-conflictual contexts: social compromise “consolidates the democratisation process”, because the “capacity of people to practise social compromise impacts positively on their experience of the democratisation process”. Furthermore, Brewer’s sociological perspective contributes to our understanding of the place of compromise in democracy by exploring the links between compromise and tolerance.

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By combining perspectives from the fields of political theory, political science, sociology and history of ideas, this volume contributes to the dialogue between different types of literature that do not often interact and to a renewed understanding of the place of compromise in democracy in three ways: first, contributions of the volume tackle unpacked, unexplored or less explored questions, such as the compatibility between consociational democracy and militant democracy (Bogaards) or the specific place of social compromises in democratisation processes (Brewer). Second, several chapters reassess ideas shared by most scholars and/or practitioners, according to which, for example, compromising would mean “splitting the difference” (Boot, Gerber); compromise would be structurally incompatible with publicity (Baume and Novak); majority rule would sit at odds with political compromises (Overeem); or compromise would not be compatible with an agonistic paradigm (Westphal). Third, chapters have engaged with paradoxes, solved or enlightened them here in a ground-breaking manner. For instance, why is compromise often presented as a sellout, while it has played such a significant role in our representative democracies? (Fumurescu). Bogaards’ chapter also tackles a paradox in exploring how antinomic elements, such as consociationalism and militant democracy, coexist in the Belgian case. Through the re-examination of unexplored aspects, puzzling cases and widespread beliefs, this volume provides a better understanding and a more fine-grained picture of the crucial aspects and functions of compromises in our democracies.

Bibliography Abts, K. (2015). Attitudes Towards a Cordon Sanitaire vis-a-vis Extremist Parties: Instrumental Pragmatism, Affective Reactions, and Democratic Principles. Ethical Perspectives: Journal of the European Ethics Network, 22(4), 667–698. Baume, S. (2012). Hans Kelsen and the Case for Democracy. Colchester: ECPR Press. Baume, S., & Papadopoulos, Y. (2019, December 3). The Achilles’ Heels of Compromises in Democracy: Criticisms and (Above All) Rebuttals. Paper Presented at the Political Theory Colloquium. University of Hamburg.

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Bellamy, R. (2012). Democracy, Compromise and the Representation Paradox: Coalition Government and Political Integrity. Government and Opposition, 47(3), 441–465. Bellamy, R. (2018). Majority Rule, Compromise and the Democratic Legitimacy of Referendums. Swiss Political Science Review, 24(3), 312–319. Bernstein, R. J. (2010). The Specter Haunting Multiculturalism. Philosophy & Social Criticism 36(3–4), 381–94. Caluwaerts, D., & Reuchamps, M. (2014). Does Inter-Group Deliberation Foster Inter-Group Appreciation? Evidence from Two Experiments in Belgium. Politics, 34(2), 101–115. Capoccia, G. (2005). Defending Democracy: Reactions to Extremism in Interwar Europe. Baltimore: John Hopkins University Press. Carens, J. H. (1979). Compromises in Politics. In J. R. Pennock & J. W. Chapman (Eds.), Compromise in Ethics, Law, and Politics (pp.  123–142). New  York: New York University Press. Cheneval, F., & A. el-Wakil. (2018). The Institutional Design of Referendum: Bottom-Up and Binding. Swiss Political Science Review, 24(3), 294–304. Cooke, M. (2000). Five Arguments for Deliberative Democracy. Political Studies, 48(5), 947–969. Deveaux, M. (2018). Deliberative Democracy and Multiculturalism. In A. Bächtiger, J. S. Dryzek, J. Mansbridge, & M. E. Warren (Eds.), The Oxford Handbook of Deliberative Democracy (pp.  156–170). Oxford: Oxford University Press. Dobel, P. J. (1990). Compromise and Political Action: Political Morality in Liberal and Democratic Life. Savage MD: Rowman and Littlefield Publishers. Dworkin, R. (1986). Law’s Empire. Cambridge, Massachusetts: The Belknap Press of Harvard University Press. Elster, J. (2000). Arguing and Bargaining in Two Constituent Assemblies. Journal of Constitutional Law, 2(2), 345–421. Estlund, D., & Landemore, H. (2016). The Epistemic Value of Democratic Deliberation. In A. Bächtiger, J. S. Dryzek, J. Mansbridge, & M. E. Warren (Eds.), The Oxford Handbook of Deliberative Democracy (pp.  156–170). Oxford: Oxford University Press. Golding, M. P. (1979). The Nature of Compromise: A Preliminary Inquiry. In J.  R. Pennock & J.  W. Chapman (Eds.), Compromise in Ethics, Law, and Politics (Nomos XXI) (pp. 3–25). New York: New York University Press. Gutmann, A. & Thompson, D. (2010). The mindsets of political compromise. Perspectives on Politics, 8(4), 1125–1143.

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Gutmann, A., & Thompson, D. (2014). The Spirit of Compromise: Why Governing Demands It and Campaigning Undermines It (Updated ed.). Princeton: Princeton University Press. Habermas, J. (1984). The Theory of Communicative Action. Boston: Beacon Press. Habermas, J. (1996). Between Facts and Norms. Cambridge MA: MIT Press. Hallowell, J. H. (1944). Compromise as a Political Ideal. Ethics, 54(3), 157–173. Kelsen, H. (1927). Schlusswort. In Deutsche Gesellschaft für Soziologie (Ed.), Verhandlungen des 5. Deutschen Soziologentages vom 26. bis 29. September 1926 in Wien: Vorträge und Diskussionen in der Hauptversammlung und in den Sitzungen der Untergruppen (113–118). Tübingen: Mohr Siebeck. Kelsen, H. (2007). General Theory of Law and State. Clark, NJ: The Law Book Exchange. Kelsen, H. (2013). The Essence and Value of Democracy. Plymouth: Rowman & Littlefield. Van. Leydet, D. (2004). Compromise and Public Debate in Processes of Constitutional Reform: The Canadian Case. Social Science Information, 43(2), 233–262. Lijphart, A. (1984). Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries. New Haven: Yale University Press. Lijphart, A. (1999). Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries. New Haven: Yale University Press. Lowell, J.  R. (1902). Democracy: An Address Delivered in the Town Hall. Birmingham, on the 6th of October. Cambridge: Riverside Press. Luban, D. (1985). Bargaining and Compromise: Recent Work on Negotiation and Informal Justice. Philosophy & Public Affairs, 14(4), 397–416. Manin, B. (1997). The Principles of Representative Government. Cambridge: Cambridge University Press. Margalit, A. (2010). On Compromise and Rotten Compromises. Princeton: Princeton University Press. May, S. (2005). Principled Compromise and the Abortion Controversy. Philosophy and Public Affairs, 33(4), 317–348. May, S. (2011). Moral Compromise, Civic Friendship, and Political Reconciliation. Critical Review of Social and Political Philosophy, 14(5), 581–602. Minkenberg, M. (2006). Repression and Reaction: Militant Democracy and the Radical Right in Germany and France. Patterns of Prejudice, 40(1), 25–44. Mouffe, C. (1998). The radical centre. A politics without adversary. European Left, 9, 11–23. Mudde, C. (2004). Conclusion: Defending Democracy and the Extreme Right. In R. Eatwell & C. Mudde (Eds.), Western Democracies and the Extreme Right Challenge (pp. 193–212). London: Routledge.

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Mutz, D. (2006). Hearing the Other Side: Deliberative Versus Participatory Democracy. Cambridge: Cambridge University Press. Niesen, P. (2002). Anti-extremism, Negative Republicanism, Civil Society. German Law Journal, 7, 249–286. Novak, S. (2011). Is There a Tension Between Transparency and Efficiency in Decisions? The Case of the Council of the European Union. European University Institute, Max Weber Programme, 33. https://cadmus.eui.eu/ handle/1814/19116. Accessed 30 Oct 2019. Novak, S., & Hillebrandt, M. (2020). Analysing the Trade-off Between Transparency and Efficiency in the Council of the European Union. Journal of European Public Policy, 27(1), 141–159. Overeem, P. (2017). Compromise, Value Pluralism, and Democratic Liberalism. In C. Rostbøll & T. Scavenius (Eds.), Compromise and Disagreement in Contemporary Political Theory (pp. 115–129). New York: Routledge. Pruitt, D. (2002). Strategy in Negotiations. In V. Kremenyuk (Ed.), International Negotiations: Analyses, Approaches, Issues (2nd ed., pp. 85–93). San Francisco: Jossey-Bass. Pruitt, D.  G., Carnevale, P.  J., Forcey, B., & Van Slyck, M. (1986). Gender Effects in Negotiation: Constituent Surveillance and Contentious Behavior. Journal of Experimental Social Psychology, 22(3), 264–275. Richardson, H. S. (2002). Democratic Autonomy. Oxford: Oxford University Press. Rintala, M. (1969). The Two Faces of Compromise. Political Research Quarterly, 22(2), 326–332. Rostbøll, C. F. (2017). Democratic Respect and Compromise. Critical Review of International Social and Political Philosophy, 20(5), 619–635. Ruser, A. & Machin, A. (2017). Against Political Compromise. London and New York: Routledge. Schelling, T. C. (1956). An Essay on Bargaining. The American Economic Review, 46(3), 281–306. Tillyris, D. (2017). Political Integrity and Dirty Hands: Compromise and the Ambiguities of Betrayal. Res Publica, 23(4): 475–494. Van Parijs, P. (2012). What Makes a Good Compromise? Government and Opposition, 47(3), 466–480. Wendt, F. (2019). In Defense of Unfair Compromises. Philosophical Studies, 176(11), 2855–2875. Weinstock, D. (2013). On the Possibility of Principled Moral Compromise. Critical Review of International Social and Political Philosophy, 16(4), 537–556.

2 Compromise and the People’s Two Bodies Alin Fumurescu

There is little doubt that the interest in the topic of political compromise has spiked side by side with the unwillingness of political actors—and of their respective electorates—to do so, both at national and at international levels. There is also little doubt that what we instinctively use to call “the political center” is shrinking all across the world to the point of disappearance, like the famous Balzac’s wild ass’s skin in the novel with the same title (La peau de chagrin). We appear less and less able to find the middle ground between otherwise traditional antagonistic positions: technocracy versus populism, republicanism versus liberalism, meritocracy versus egalitarianism, and so on. Although this is not a new development, for it happened repeatedly throughout history with various intensities, what is new is the extent and the depth of these uncompromising positions on both sides of the spectrum, left and right. It seems that politics has ceased to be, as previously claimed, “the art of

A. Fumurescu (*) University of Houston, Houston, TX, USA e-mail: [email protected] © The Author(s) 2020 S. Baume, S. Novak (eds.), Compromises in Democracy, Palgrave Studies in Compromise after Conflict, https://doi.org/10.1007/978-3-030-40802-2_2

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compromise,” becoming instead a mere technique for stirring up deeper divisions in order to harvest votes. Fortunately, the intellectual history of compromise can illuminate how we got here and can even suggest possible remedies, indicating ways to overcome this binary type of thinking. On the one hand, this history takes us before the time when the meaning of the word split between a commendatory and a commendable sense, and show how this split did occur. By doing so, it indicates not only that both the meanings and the attitudes toward compromise are far from fixed, across time and across space, but also that to a large extent both can be “manipulated,” more or less consciously. On the other hand, the same history reveals, over and over, that in order to be successful any political compromise ought to have not only a rational, give-and-take component, but also an affective one, involving mutual sacrifices. As such, compromise reveals itself able to overcome the typical “either-or” attitudes, and to provide instead a “both-and” solution to a classic dichotomy: both trade-off between competing interests, as classic liberalism will have it, and cultivation of “the chords of affection,” necessary for keeping together the political body, as classic republicanism will claim. Yet if compromise is such a resourceful concept, how come that lately it is presented almost exclusively as a sellout? The explanation, I claim, is to be found in the forgotten fact that the attitude toward compromise is heavily influenced by the understanding of political representation, which in turn is related to self-representation (Fumurescu 2013). In other words, the willingness to engage in a political compromise is related with one’s apprehension of “the people.” After all, as James Farr put it (Farr 1989: 33), “concepts are never held or used in isolation, but in constellation which make up entire schemes or belief systems.” As I shall try to demonstrate in the following pages, what for us today may appear as “schizophrenia,” was for a long period of time a suitable way for dealing with a political reality that could not (and still cannot) be confined in the peculiarly modern “either-or” model of the people: either ruled by wills or by reason, either artificial creation or organic whole. Thus, both the question of popular sovereignty and the question of political compromise were addressed in a more creative way than democratic theory does today.

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If throughout the Middle Ages compromise was regarded as a neutral method for solving disagreements (arbitratio) and/or for electing representatives (electio), neither to be praised as a virtue, nor to be rejected as a sellout, it was because the self was apprehended in a dual manner, as a dialectic between forum internum (the inner self ) and forum externum (the outer self ). The formalization of the distinction between the two fora can be traced at least back to the conciliar literature, apparently sometimes after 1140, although probably is even older. Forum internum was the forum in which the individual was characterized by authenticity and autonomy, while forum externum was the one in which the uniqueness of the individual was ensured by his membership in some universitas—not just the Church, but also the village, the city, the province, even the populus, as Baldus have it.1 As a result, political representation and compromise never involved the individual as a whole, but only his or hers forum externum. According to that understanding, the inner self could not have been neither represented nor compromised. Representation and compromise could have involved only the individual qua member of a community. As paradoxical as it might sound, “people” could have been represented, but not “individuals.” Here, I suggest, the paradigm of the people’s two bodies proves its usefulness for mirroring the ambivalence of both representation and compromise. Inspired by the British paradigm of the King’s Two Bodies, famously revived by Kantorowicz, the idea of the people being conceived at once as a multitude prone to errors and as a sovereign corporate entity that cannot err enjoys a long pedigree (Kantorowicz 1957). Even if the label of the people’s two bodies is recent, the idea behind it is not.2 It predates the transfer of sovereignty from kings to people and hence the

 See the examples offered in Kantorowicz (1997 [1957]: 209–10).  One could argue that the “people’s two bodies” label is inaccurate, since as a multitude the people have not one distinct body, like they do in the corporate understanding. However, the expression “the body of the people” is currently used mostly in reference to a multitude of voices, which makes the distinction implied by the label even more useful. One should also remember the frontispiece of the 1651 edition of Hobbes’s Leviathan, by Abraham Bosse, “with creative inputs” from Thomas Hobbes, in which the body of the sovereign is made up by tiny little persons. 1 2

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transfer of the idea of the King’s Two Bodies to the people’s two bodies that came to characterize the revolutionary eighteenth century.3 Not surprising, once the self-representation of individuals began to split across the Channel at the beginning of early modernity—as I will detail later—in a centrifugal and a centripetal individualism, so did the understandings of political representation, of compromise, and of the people’s two bodies. Thanks to the development of a centrifugal individualism, in which the outer self (forum externum) became the only reliable one, by the beginning of the seventeenth century Great Britain pioneered the understanding of the people as a collection of equal individuals, united via a mutual compact or compromise. Meanwhile, France continued, for more than a century afterwards, to preserve the medieval understanding of the people as an organic corporation, hierarchically structured. Yet, because of the spread of a centripetal individualism, for which one’s inner self (forum internum) remained the only “authentic” one, while the outer self was reduced to a mere “costume,” the French compromis lost its neutral meaning, being perceived as a threat to one’s identity. The American case is different from both the British and the French in that in the New World the modern understanding of “the people” took a peculiar twist—and so did the usage of compromise. As I shall show in detail later, thanks to the Puritan bi-dimensional covenant, the idea of equal individuals consenting to form a new political body and to subject themselves to a new form of government was far from a mere philosophical idea. It was a living reality, hence the later attractiveness of the social contract theory for American political thinking. At the same time, once this new body of people was formed, the details of setting up a specific form of government and its daily function was trusted in the hands of an elected aristocracy of merit, driving many scholars to claim that the  Although the formula of “the people’s two bodies” has been previously used, the interpretation offered here differs drastically from the ones proposed by Wolin (1981) and by Santner (2011). On the one hand, Wolin identifies in the American tradition a politically active, democratic body, and an essentially passive, economic, and antidemocratic one. On the other hand, Santner focuses on the modern transference of sovereignty from the King’s Two Bodies to the people’s two bodies, mainly from a psychoanalytical perspective centered on the idea of “corporeality.” Morgan (1989), whose chapter four is entitled “The People’s Two Bodies” comes closer, distinguishing between people as subjects and people as rulers, and between the power to govern and the power to determine the form of government. See also Fumurescu (2018) and Fumurescu (forthcoming). 3

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Puritans were in effect more medieval than modern (Foster 1991; Lutz 1988). In reality, the American Puritans simply assumed that people enjoyed equal constituent power, but different political skills (Ryerson 2016: 12). This dual understanding of the people, both horizontal and vertical, proved to be, politically speaking, a long-lasting legacy. What sets the American case apart is that they had the opportunity to actually implement both understandings of “the people,” most of the time without really favoring one at the expense of the other. Some scholars have noticed that “democratic tides” come and go throughout American history (see, e.g., King (2012: 100)).4 The approach that I propose here overcomes this binary interpretations, divided between “republicans” and “radical democrats” (Ibid., 130–150),5 “traditional or radical Whigs” and “Federalists” (Lutz 1980),6 “democrats” and “anti-democrats” (Jensen 1970), or simply “republicans” and “liberals.”7 In effect, I claim that, as in the story of the blind men and the elephant, all interpretations are partially right, and the main problem remains the inability to seize the paradigm of the people’s two bodies underlying these labels. By contrast, the interpretation suggested here represents more than the acknowledgment of “multiple traditions” (Gibson 2007), a “synthesis” (Noll 2002), or an “amalgam” (Zuckert 2005). It invites the reader to see the whole elephant. While scholars are usually contrasting the active liberty in civic humanism or in the classical republican paradigm (to participate in the political decision-making process) with the passive liberty in the natural rights tradition (a liberty that could be possessed without political activity,) the two people’s bodies approach, of Puritan descent, offers a solution to this apparent conundrum. It is also important to note that neither the  See, for example, King (2012: 100).  Ibid., 130–150. 6  Donald S. Lutz (1980), Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions (Baton Rouge: Louisiana State University Press). 7  When it comes to interpreting the founding through “republican” versus “liberal” lenses, the literature is by now too voluminous to review. Suffice is to say, with the risk of simplifying, that among the promoters of the republican readers one finds scholars such as Barnard Baylin, Gordon Wood, and J.G.A. Pocock, while on the liberal camp, names such as Joyce Appleby, Isaac Kramnick, Thomas Pangle, Michael Zuckert, or Mark Hulliung. Most of them and some of their disciples will be mentioned and quoted throughout this book. 4 5

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corporate conception of the people nor the understanding of the people as a collection of individuals is inherently friendly or hostile to compromise. Rather, the two approaches resemble Machiavelli’s famous comparison between the state of Turkey, ruled authoritarian by the Sultan, and the state of France, ruled by the king with the help of an envious nobility: “Comparing the two states, anyone can see that, though conquering the Turkish state might be hard, once conquered, it would be easy to hold. On the other hand, to take the state of France would be relatively easy in some ways, but to hold onto it would be very hard” (Machiavelli [1977]: 13). In a similar way, the American founding teaches us that, as a general rule, under republican premises, compromises are difficult to arrive to, yet once the agreement takes place, chances are they will be long-lasting. In contrast, under liberal assumptions, political compromises are easier to reach yet hard to keep. As long as the idea of a corporate people is accepted by the parties involved, all efforts are directed toward creating a concurrent majority that takes into consideration the demands of the minority. The process tends to drag on, for the stakes are high, but once the solution is agreed upon, it will be long praised by everyone as a gesture of good will from all parties. In counter distinction, once the people is understood as a multitude of equal individuals, compromise becomes the only way of creating a people by setting up, through voluntary consent, an impartial arbitrator or a compromissarius (Fumurescu 2013). Yet once this new people is created, the inherent inequality between a majority and a minority—the basic principle of the social contract theory—makes any political compromise ephemeral, by switching the emphasis from its affective component to its contractual one. The chapter is structured accordingly. The first part traces back to the medieval times the connection between compromise and the dual understanding of the people—as a corporation hierarchically ordered, on the one hand, and as an untrustworthy multitude, on the other one. Yet starting with early modernity, this second understanding of the people as a multitude of equal individuals enjoyed a drastic reconsideration in Great Britain, paralleled by a split in the attitude toward compromise across the Channel. As the second part of the chapter shows, in the New World the modern understanding of the people took a peculiar twist, and

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so did the attitude toward compromise. As a result, the American founding was shaped by a dual apprehension of the people, and an ambivalent attitude toward compromise, manifested throughout all its key-moments. In the concluding remarks, I argue that these historical lessons, properly understood, remain relevant for many contemporary challenges, not just in the USA, but all across the world.

2.1 The People as One or Many In Democracy for Realists, Christopher Achen and Larry Bartels argue that the credibility of “folk theory” of democracy, according to which people rule either directly or indirectly, through their representatives, “has been severely undercut by a growing body of scientific evidence” (Achen and Bartels 2016: 11). Backed by a wealth of recent studies, the authors make a claim worrisome to many: none of the two main theories of democratic governance, namely the populist and the elitist, can sustain empirical inspection. Voters do not control public policy, neither directly, through referenda and popular consultations, nor indirectly, by prospectively choosing or retrospectively rewarding leaders that attend to their wishes. Bluntly put, “conventional thinking about democracy has collapsed in the face of modern social-scientific research,” yet “scholars … persist uneasily in their schizophrenia, recognizing the power of the critical arguments but hoping without hope that those arguments can somehow be discredited or evaded” (Ibid., 12—emphases added). In Achen and Bartel’s view, “the ideal of popular sovereignty plays much the same role in contemporary democratic ideology that the divine right of kings played in the monarchical era.” “The doctrine of ‘The King’s Two Bodies’ (…) provided useful leeway for understanding and accommodating the fact that mortal rulers were often less than divine in bearing and behavior.” A similar rationale applies to the contemporary understanding of the people. “We … have our ‘two bodies’ doctrine: when majorities go seriously astray, it is not the people that ‘advised themselves,’ but rather the people misadvised by others and misled by misordered counsel” (Ibid., 19–20).

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I shall argue that there is more validity in the paradigm of the people’s two bodies than Achen and Bartel seem willing to grant. The paradigm might be nothing more than a fiction, but it is a useful one—like all other fictions upon which any government rests. They are the bread and butter of politics. Edmund Morgan’s observation is not to be ignored: Governments require make-believe. (…) Make believe that the people have a voice or make believe that the representatives of the people are the people. Make believe that governors are the servants of the people. Make believe that all men are equal or make believe that they are not. (…) Because fictions are necessary, because we cannot live without them, we often take pains to prevent their collapse by moving the facts to fit the fiction. (Morgan 1989: 13–14—emphasis in the text)

Despite what common misconceptions would have us believe, the doctrine of the King’s Two Bodies was far from widespread and equally far from characterizing the entire medieval period. Even if the doctrine was probably known across Europe, “it was nevertheless in England alone that there had been developed a consistent political, or legal theory of the ‘King’s Two Bodies.’” The theory, “in all its complexity and sometimes scurrilous consistency, was practically absent from the Continent” (Kantorowicz 1957: 446; 441). According to Queen Elizabeth’s lawyers, “the King has in him two Bodies, viz., a Body natural and a Body politic. […] [H]is Body politic is a Body that cannot be seen or handled, consisting of Policy and Government, and constituted for the Direction of the People, and the Management of the public weal, and this Body is utterly void of Infancy, and old Age” (quoted in Ibid., 7). Far from being typically medieval, this “notion had … its important heuristic function in the period of transition from mediaeval to modern political thought” (Ibid., 447). This is not to say that European medieval political thought was deprived of this dual way of thinking when it came to understanding the people. Throughout the Middle Ages, at least from the Roman lawyer Azo onward, “the people” were conceived simultaneously as a whole and as a multitude, as One and as Many. The same rationale informed both the Church and the political bodies (Ciepley 2017; Fumurescu 2013,

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especially Chapter Three). That the body politic was to be distinguished— as later on the political body of the King would be as well—from the physicality of its members, was a certitude for the famous Commentator Baldus de Ubaldis, who wrote in the fourteenth century: “Therefore separate individuals do not make up the people, and thus properly speaking the people is not men, but a collection of men into a body which is mystical and taken as abstract, and the significance of which has been discovered by the intellect” (quoted in Canning 1987: 187). Like the General Will that Rousseau would later describe, this “mystical body of the commonwealth” (corpus mysticum republicae) could not err.8 As modern as it might seem today, the idea that governments are the creation of the corporate people and that rulers are responsible and subordinate to the people was a common trope throughout the entire medieval period.9 Jacques Almain and John Mair, for examples, two lecturers at the University of Paris “were … explicit … about the power of the secular community over the ruler. The community retained a constituent power. It could change both the ruler and the form of the constitution for reasonable cause” (Salmon 2007: 462). The first monarchomachian theories of justified resistance were based, not on some proto-social contractarianism, but on the medieval political contract between the people and their rulers. Thus, in Beza’s words, “those have the power to depose a King who have the power to create him” (de Bèze [1970]: 45).10 There is no doubt, however, that in the medieval and even the early modern French understanding, the people entitled to remove an unworthy king were not the multitude but the optimates, that is, the most reasonable part of it (maior et sanior pars.) However, who exactly could fulfill this role was open to debate. For François Hotman they were the supreme magistrates in the Estates, while for Beza, in the case of corruption of the Estates, the role could devolve to inferior magistrates. Yet, despite these differences, all authors from the period, Protestants and Catholics alike,  It would be undoubtedly interesting to analyze how Rousseau’s distinction between the General Will and the will of all (as simple majority of individual wills) relates with the paradigm of the people’s two bodies. It would constitute, however, an entire project in itself. 9  This understanding was common in both Western Europe and the Byzantine Empire. See Kaldellis (2015) for a similar argument and a wealth of examples. 10  For more details and examples, see Fumurescu (2013), Chapter Three. 8

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carefully distinguished between the people as a conceptual whole and the majorities, that is, between the people as One, and the people as Many. They would all have agreed with Bodin who had previously argued that “in popular assemblies votes are counted, not weighed, and the number of fools, sinners, and dolts is a thousand times that of honest men” (Bodin 1955: 193 (VI.4)). In this context, corporations (or offices) could have been represented and/or made compromises, but unique individuals could not. Thanks to the medieval dialectic of the individual, the general understanding was that no one could represent someone else in full, for no one could represent someone else’s uniqueness. The revival of Roman law and the distinction between public and private law (lex publica and lex privata) made the differentiation between the two almost “natural” (Comparato 2006: 149). It referred to “the two broad arenas in which the Church’s canon law was operative: the external forum of ecclesiastical courts and the internal forum of conscience and of penance” (Goering 2008). Although the wording sometimes differs, the sense remains the same. For most of the Middle Ages, instead of forum internum one finds, for example, forum conscientiae or forum poenitentiale, while for the forum externum one also finds the usage forum judiciale. The inner self (forum internum) was the forum in which the individual was characterized by authenticity and autonomy (in the etymological sense of giving one’s own laws, auto-­ nomos), while the outer self (forum externum) was the one in which the uniqueness of the individual was ensured by his membership in some universitas—not just the Church, but also the local parish, the guild, or “the people” (populus). From a Christian perspective this ambivalence was not as hard to handle as it might seem. As Kantorowicz observes, interpreting Dante, “[b]oth Adam and Christ were man in a peculiarly double fashion” (Kantorowicz 1997: 482), both unique and identical with the whole of mankind. Not surprisingly, “theology emphasized both the community of divine love and the individual’s personal relation with Christ” (Black 1988: 592). True, the Church was a mystical community that comprised all the believers, past, present and future (as Augustine wrote in his City of God), but this body ensured the distinctiveness and uniqueness of each of its members precisely because of their equality as “members.” The

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hierarchy, visible and invisible, between Christians was not an impediment; quite the contrary. Because each member, regardless of his or her position in the hierarchy, fulfilled a unique function, envy was, theoretically speaking, precluded: a pinky, say, cannot replace an eye, but neither the eye can replace a pinky. [In the City of God] there will be no envy of the lower for the higher, as there is no envy of angel for archangel—for this is one of the great blessedness of this blessed City. The less rewarded will be linked in perfect peace with the more highly favored, but lower could not more long for higher than a finger, in the ordered integration of a body, could want to be an eye. The less endowed will have the high endowment of longing for nothing loftier than their lower gifts. (Augustine 1958: 541, XXII.30)

One was at once created in God’s image (therefore identical with any other human being) as the primary cause, and by one’s biological parents as a secondary cause. One was at once a morally independent individual and a member of the Church. And yet it would be a mistake to simplify this dialectic of the individual by attributing uniqueness solely to the forum internum and sameness exclusively to the forum externum. For the medieval man the interplay between uniqueness and sameness was present in both fora. The uniqueness of each individual was secured in the forum internum by the fact that one was a morally independent individual, accountable only to God and in the forum externum by performing a unique function inside the universitas. At the same time, the sameness among individuals was preserved in the forum internum by the fact everyone was created in God’s image, and in the forum externum by everybody’s membership in the same universitas. Simply put, one had a unique identity because one was identical with others, and one was identical with others because one had a unique identity.11 Since the inner self was impossible to represent, it was beyond the realm of political compromises which are inherently public. Consequently, regardless of the circumstances, for the medieval individual, compromise could only involve the external, public self (forum externum), qua 11

 It is no accident if “identity” and “identical” share a common etymology—id-ens.

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member of a corporation (universitas), but never the inner, private self (forum internum). Thus, compromise, both as a method of arbitration (arbitratio) and as a method of election (electio) was a neutral term, neither to be praised nor to be feared, since there was no fear of “being compromised.” Early modernity put an end to this understanding. Challenged by the various pressures of change, the dialectic of the individual between the two fora split across the Channel, tipping the balance toward one pole or the other. In France, the increased pressure on the forum externum as a consequence of the emergent absolutist regime made wider the gap between forum internum and externum to the point of severing them altogether. Both Montaigne and Charron clearly delimit the two facets of the individual, yet the sophistication of the medieval dialectic between uniqueness and sameness not only between but also within each of the two fora was lost in the process: the forum internum became the sole repository of authenticity and uniqueness, while the forum externum came to be assimilated with blind conformism. The inner self came to be apprehended as the only “true” self, while the outer self was relegated to the role of a mere costume. Centripetal individualism was born, which in turn helps us understand the almost obsessive French fear of “being compromised.” As Charron put it, “each one of us plays two roles and has two personae, the one alien and in appearance only, the other our own and essential to us. It is important to know the difference between the skin and the costume” (Charron [1604] 1986: 322, Livre Premier, LXIX). This widening gap between the two fora had a double-edged consequence: on the one hand, the individual became increasingly aware of his or her uniqueness and suspicious of any perceived attempt to compromise his authenticity, that is, his or her forum internum; on the other hand, fulfilling one’s duty in the forum externum remained the only basic political requirement. If by the seventeenth century the French used compromise consistently with negative connotations, it was because compromissum as arbitartio over the forum internum was a risky enterprise. All three requirements for a successful classical compromise—namely the recognized authority of the arbitrator to equally represent the interests of both parties, the willingness to accept the risks involved in a third party’s judgment, and the basic equality of the parties involved in the dispute—came into question. Not

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accidentally, all the French usages of compromise involved, in one way or another, the same forum internum: “I will not compromise my conscience, my honor, my virtue, or myself” were all ways of saying “I will not accept someone else’s arbitration over my forum internum, over what makes me first and foremost a unique individual.” Since any compromise presupposes the equality of the parties, and if the forum internum is apprehended solely in terms of uniqueness any arbitration is by definition suspect, creating a false equality between incomparable parties (Simmel 1950: 222). Thanks to this centripetal individualism one can also better understand the common praise of the people as a conceptual whole and the demise of the people as a “thousand heads beast.” In the former case, “the people” was characterized essentially by its highest qualities, including reason. In the latter, “individuals, in all their divergences, leave only the lowest parts of their personalities to form a common denominator” (Ibid., 32). Considering the disconnect between forum internum and externum during France’s absolutist period, the later seemingly schizoid emphasis of the French revolutionaries on both individuals and direct participation and on the cohesion or wholeness of “le peuple,” “la Nation,” or “la Republique” starts to make sense. In this simplified picture there was no longer place for different overlapping universitates competing over the same forum externum of the individual. L’État absolutist was destroyed, but its legacy endured under new names and became even more jealous of what came to be perceived as contender universitates, as Tocqueville later observed in his Old Regime and the Revolution. Le Chapelier’s words from 1789 have resonated throughout modern French history: “Il n’y a plus de corporation dans l’État; il n’y a plus que l’intérêt particulier de chaque individu et l’intérêt général. Il n’est permis à personne d’inspirer aux citoyens un intérêt intermédiaire, de les séparer de la chose publique par un esprit de corporation” (quoted in Rosanvallon 2004: 13). (“There are no longer corporations inside the State; there is only the particular interest of each individual, and the general interest. It is not allowed to anyone to inspire citizens to an intermediary interest, separating them from the public sphere by a corporatist spirit.”) If by the eighteenth century French revolutionaries were not willing to compromise, neither they were willing to accept a civil society that might

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function as bridge between the atomistic individual and the universitas of the Nation. They forgot that a bridge has a double function—it connects the two shores and yet at the same time separates them. Neither in theory nor in practice were the French prepared for something like this. Although my research did not go so far, I suspect that from this perspective the period encompassing the French revolution may offer new insights in this matter. In England, on the other hand, the development of a different kind of individualism paralleled the peculiar understanding of representation as representation of individual wills. Here, for the first time, the idea of every individual being represented without rest in the Parliament was widely accepted, along with an insistence on the majority of wills. The two fora collapsed into each other, and the end of the sixteenth century and the seventeenth witnessed the birth of the modern, one-dimensional man. If Condren is right asserting that in seventeenth century England the distinction between the private and the public was not a matter of fact, accepted more or less consciously as such by all the participants in the public sphere, it is because the borders between the forum internum and externum became fluid. If in France centripetal individualism focused almost exclusively on the forum internum, in England, the private was equated not with a sphere of independence, but with an absence of right. If “the only liberty was the liberty of office” it was because what mattered first and foremost was the forum externum (Condren 2006: 73). “The true liberty of the subject has no location in any private realm” (Ibid., 76). Hobbes made clear both in De Cive and in the Leviathan that at a close scrutiny forum internum had no relevance. What happens “in foro externo” is all that matters. Hence, there was no reason for fearing compromise and contracts of wills became the basis of both civil society and government. As a result, by the beginning of the seventeenth century, Great Britain pioneered the understanding of the people as a collection of individuals, united via mutual compact or compromise, with every single Englishman virtually represented in Parliament. Gilbert Burnet, for example, used “compromise” to explain his theoretical version of the social contract:

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The True and Original Notion of Civil Society and Government, is, that is a Compromise made by such a Body of Men, by which they resign up the Right of demanding Reparations, either in the way of Justice against one another, or in the way of War, against their Neighbours; to such a single Person, or to such a Body of Men as they think fit to trust with it. (Burnet 1688: 2)

The assimilation of compromise with the contract that gave birth to both civil society and government presented the Englishmen with another conundrum: since both spheres, the civil and the political, were created as the result of individual wills, was civil society political or not? How to maintain the distinction between the public and the private since both were artificial creations and the distinction between forum internum and forum externum was lost? We are still struggling with these questions. From this perspective, the founding of the American people may offer some valuable lessons. Thanks to its peculiar history, the paradigm of the people’s two bodies came here as close as possible to being a living reality. On the one hand, the refusal to compromise with perceived “others” that came to characterize Puritans, Patriots, Antifederalists, and Southerners alike reveals largely ignored similarities between protagonists that otherwise are considered to have belonged to opposite camps in the story of America’s founding. On the other hand, the willingness of Puritans to compromise, if only among themselves, and the calls for compromise made to their opponents not only by Loyalists, but also by Federalists, and even by most Northerners until civil war became a reality, signals— other practical and historical considerations aside—that these actors might have had a shared understanding of what “the people” stood for, and why they thought a compromising attitude ought to be praised. As such, the story of the American people, precisely because of the ambivalence of the term “people” for the protagonists, offers researchers a unique opportunity by combining in a peculiar way the British willingness to compromise with the French unwillingness to do so. I shall argue that it was precisely this foundational double helix that is largely responsible for the versatility of American politics, and its eventual successes, but also for the persistent confusions both between the two

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understandings of the people, and between the social and the political compact, respectively. Considering all the contemporary implications, it is, therefore, from this foundational double helix that we ought to begin.

2.2 The People as One and Many12 If the American people was over two centuries in the making, it is because its creation began not with three groups defined by different cultures— moralistic in New England, individualistic in the Middle Atlantic, and traditionalistic in the South—and not even with 13 groups, but with many more.13 Practically, each group of Puritans and Pilgrims arriving on the shores of the New World actually created new, theologico-political “peoples” through the express consent of individuals to found both a church and a political community. “One could also speak of their creating a society, but this term is not quite strong enough” (Lutz 1988: xxiv). They were covenanted people, and covenantal theory permeated their entire Weltanschauung despite, or precisely because of, its sophistication. The Puritans distinguished between the covenant of works, the covenant of grace, and the covenant of justification, but also between the inner covenant of each individual with God, the church covenant, and the covenant of each church with God. However, out of these multiple covenants, only two proved to be long-lasting: the horizontal church covenant, among the members to form a church and a political community, and the vertical covenant between each church and God, that was politically reflected in the covenant of the newly created people with their elected leaders. It is easy to understand why this bi-dimensional covenant can be mistaken as either a proto-social contract theory or a medieval political contract. However, the similarities in form cannot obscure the major differences in their fundamental assumptions about human nature and political membership.

 This section is largely informed by Fumurescu (forthcoming).  For the famous tri-partition, see Elazar (1972).

12 13

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The American Puritans, unlike their English counterparts, distrusted forum externum, for, like the French, they suspected it of being tainted with hypocrisy. Nor did they trust forum internum, as the French did, for, as the English, they believed it was deceitful, easy prey to devil’s tricks. As a result, they rejected both the British centrifugal individualism and the French centripetal form of individualism, embracing one of their own, which I labeled, for lack of a better word, “purged individualism.” Essentially, it presupposed to purge one’s forum internum by effectively turning it inside out, thus replacing forum externum for everyone to see. Through detailed public confessions (admission tests) the internal self became the visible, external one, and the authenticity of its conversion or “purity” had to be vetted by the “visible saints.” It was the necessary pre-­ condition for being admitted as a full member, with voting powers, in both the church and the political community. Put in modern parlance, no “conversion narrative,” no “citizenship.” For being admitted in the community, the invisible ought to be made visible. By requiring the external approval of the hierarchy of saints, this purged individualism began a collision course with the horizontal understanding of the people qua free and equal individuals. As communities expanded, older and more educated religious authorities began to be contested, and the pendulum swung from “objectivity” to “subjectivity,” from reason to will, and from the community to the individual. By the beginning of the eighteenth century, the American colonists became more British than their brethren across the Atlantic. Yet, by the same token, they also began developing their own particular identities (McConville 2006; Rhoden 2013). Because the Great Awakening ended up permanently destroying the old theologico-political communities, new ways of identifying were needed. Since the British assumption was that a people was held together primarily by its own elected legislative, the colonial assemblies came to be seen as the equivalent of the British Parliament. As the tensions between the metropole and the colonies intensified, the idea of different peoples inside the empire of Great Britain, held together only by political contracts between the king and each colony, became increasingly attractive. As the “arbitrator” or “compromissarius” between different parts of the empire, the role of the king for the

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colonists was emphasized to the extent that, to the surprise of many, including Lord North, they became more Tories than Whigs (Nelson 2011). In order to defend their corporate rights, the colonists had no choice but to renounce any pretention of being represented by or in the Parliament, either virtually or actually, as the social compact theory demanded, and make appeal to the political one, for all extra-colonial relationships. Thanks to the paradigm of the people’s two bodies, throughout the Imperial Debate, the colonists proved more versatile, at least as far as theoretical justifications were needed on both sides of this confrontation. This cherished corporate identity at the colonial level, made the Patriots increasingly unwilling to compromise, and when the time came, King George metamorphosed almost overnight in the colonial psyche and pamphlets from a benevolent Father into “the perfect scapegoat” (Stourzh 2010: 25). Although largely ignored in the first years after its adoption, the Declaration of Independence managed to depict the king as the main culprit of all colonial infringements of corporatist rights, all while reaffirming that “consanguinity” and the “Ties of our common Kindred” do not matter when “it becomes necessary for one People to dissolve the Political Bands which have connected them with another” (Shain 2014). A people was a political entity, not one based on common ancestry, traditions, and so on. The fear of a tyrannical executive left an undeniable mark on the state constitutions—and not only the first ones. These foundational documents shared a common feature: the emphasis switched one more time from the corporatist and hierarchical vision of the people to the horizontal and egalitarian one and granted extended powers to the state legislatures. This commonly held egalitarian approach makes it easy to discuss the state constitutions of the late eighteenth century together with the ones from the first half of the nineteenth ones, despite some undeniable differences between the first and the latter. Three of these differences are worth emphasizing. The first one is the transfer of the constitutional power from the legislatures, in which it initially resided, to the state ratifying convention, thus increasing popular control. The second is the relatively rapid abandonment of the secrecy of the debates in these conventions—a decision that impaired the chances

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to compromise and opened the door for a populist rhetoric. Finally, the third one is the increasingly rapid move away from providing representation for corporations—towns, counties, and the like—to providing representation for individuals. Yet the corporatist vision of the colonial peoples was not to be abandoned when it came to establishing the Articles of Confederation. As in the case of the now largely forgotten Articles of the Confederation of the United Colonies instituted by the Puritans more than a century before, the theoretical equality of corporations, regardless of their actual size, made a compromise possible, despite the marked differences among the newly created 13 states. It was no small feat, considering that just a few years before, these differences—economic, religious, cultural, and so on—were considered by most actors and outsiders impossible to overcome. According to an anonymous British observer, the association of so many different peoples amounted to nothing more than “a rope of sand” (quoted in Greene 1982: 19). He was proven wrong. Even if the Articles of Confederation turned out to be short lived and deficient in many respects, it was a constitution that formalized the idea of dual citizenship and made possible the compromises of the Philadelphia Convention (Lutz 1990: 66). To claim to have something new to say about the compromises that took place during the Philadelphia Convention and the successive ratifying conventions might appear pretentious, considering the amount of scholarship already dedicated to this topic. Nevertheless, without challenging (most of ) these interpretations, I suggest that the main reason why the Constitution was reverentially referred to by Henry Clay as “the greatest of all compromises” (quoted in Knupfer 1991: 23) was not primarily because it set up an example of how meaningful compromises can be reached by combining appeals to interests and to affections, but because it formalized with a surprising degree of success the paradigm of the people’s two bodies. The fact that the famous three words that open the Constitution, “We the People,” were never elaborated upon in the text that followed, far from being a weakness, allowed a lot of room for maneuver in defining “the people.” The delegates present in Philadelphia in the summer of 1776 were faced, in this respect alone, with a double challenge: first, to decide if the USA was made up of one or of several

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peoples (or nations); second, to decide which of the two understandings of the people ought to be given priority. Both of these challenges were solved through compromise. Elbridge Gerry’s observation made in the convention, on July 5, proved convincing enough for most delegates: “We were neither the same Nation not different Nations. We ought not therefore to pursue the one or the other of these ideas too closely” (Madison 1985: 243). The second compromise about the people was the hardest. Since in the Articles of Confederation the principle was clearly in favor of representing the people in their “corporate capacity,” and the Articles proved defective, for politicians like Hamilton, it meant that it was “the great and radical vice in the construction of the existing Confederation,” and ought to be replaced with its counterpart—representation of individuals (The Federalist 2001: 71). Fortunately, the end result represented a compromise between the two, and not just by ensuring the representation of individuals in the House of Representatives, and of the corporate peoples in the Senate, but by creating a mechanism of checks and balances that would prevent, so to speak, one body of the people from taking over the other. As Tocqueville noticed, “In America, the struggle between these two camps,” one “wishing to restrain the power of the people, the other to extend it without limit,” “never took the violent form that has often distinguished it in other countries. Both parties agreed about the most essential points,” and, as he went on to explain, many of one camp’s principles “ultimately became part of their adversaries’ creed.” Therefore the Federalists success was, in his view, “one of the most fortunate events attending the birth of the great American Union,” and he believed that “the federal Constitution … is a lasting monument to their patriotism and wisdom” (Tocqueville [2004]: 200–201). However, not all the compromises of the new Constitution were to be applauded and, unsurprisingly, not all of them proved long-lasting. The (in)famous Three-Fifths Compromise might have been necessary at that time both for finalizing the draft and for increasing the likelihood of its ratification, but it also turned out to be the least defendable. Nevertheless, for the first decades of the new republic, the institution of slavery was neither in the forefront of political debates nor a direct threat to the Union. To the despair of the most committed abolitionists, such as

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William Lloyd Garrison, slavery was mainly discussed as an economic and constitutional problem, not as a moral one. As a matter of fact, the first serious threat to the Union came not from the South, but from the New Englanders. What they perceived as a growing wave of populism, exploited by the Southern aristocrats, was seen as a direct threat to the republican principles upheld throughout the Revolutionary War and beyond by the American people (Brown 2016). This rather forgotten episode in American history has two valuable lessons to teach us. On the one hand, it shows that when a minority feels constantly abused, rightfully or not, by a majority, compromises become more difficult if not altogether impossible, being refused by both parties as either unnecessary (by the majority) or as “too little, too late” (by the minority). On the other hand, it also suggests that populism and the existence of an aristocracy of wealth, far from being incompatible, may very well coexist. Not surprising, the entire period of the founding is marked by two different kinds of fears: on the one hand, the fear of the licentious mob, the people qua headless multitude whose strength relies on numbers, and, on the other one, the fear of unchecked power and the corruption of hypocrite leaders, pretending to rule for the common good. If apprehended as distinct, each of the people’s two bodies became threatening. A similar ambiguity manifested in the development of mass politics during the first half of the eighteenth century. While enfranchising and mobilizing more and more strata of the white male population, it also meant a setback in terms of political rights for many white women and free blacks.14 Such developments were part of a larger one, marked by the emergence of a political rhetoric increasingly attacking an “otherness” defined not just in terms of gender or race, but also of religion, ethnicity, place of birth, and so on. Some strange alliances took place during that period, showing how dangerous it can be to make sweeping correlations between increased political activism and tolerance. Fortunately, by the same token, the problem of slavery finally came to be posed as a moral one, and thus one that could no longer be subjected to political compromises. In the end, in one of the last ironies of the American founding, it 14

 See, for example, Robertson (2015).

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was the South, not the North, that refused to compromise on what it perceived as a direct threat to the Southern peoples’ identity, thus initiating a devastating civil war. By now, it should come as no surprise that the Civil War was, in Lincoln’s interpretation, “essentially a people’s contest.” As such, “no compromise by public servants could in this case be a cure” (Lincoln 1953 [1861]: 439).

2.3 Conclusions On the one hand, throughout the Middle Ages “the people” was understood exclusively as One, a corporation of corporations hierarchically structured, allegedly ruled by reason for the common good, while the people as Many was relegated to the position of an unreliable and irrational mob. Since political compromises never involved individuals qua individuals, but only corporations, there was no fear of being compromised, as long as the identity of the corporation was not perceived under threat. On the other hand, starting with early modernity, the success of different versions of social contract theories, swung the pendulum in the direction of the Many. People as collections of equal individuals, manifesting their wills by vote, came to be apprehended as the basis of any legitimate political authority, while political elites became inherently suspicious. Compromise became the founding principle and the virtue of politics, yet it remained ephemeral, an easy target for changing majorities. Furthermore, if a majority came to be consolidated, compromise was no longer necessary or sought, because of the obvious inequality between the parties. Different from both the people solely as One or the people solely as Many, the paradigm of the people’s two bodies suggests a way of reevaluating both the role of the masses and the ones of the elites, and thus of political compromises as well. As we have seen, in accordance with the Puritan understanding, individuals were equally endowed with the freedom and wisdom required to voluntarily enter into a covenant or compact meant to create a political body and/or a society (pactum societatis). But, by the same token, once these new bodies were formed, the political

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contract (pactum subiectiones), took preeminence. The specific form of the government and its running was trusted in the hands of the best qualified, who promised in exchange to use their offices for the promotion of the common good. As a result, the Puritans were willing to compromise among themselves, but not with the perceived outsiders, for the community was a politico-religious one. In the end, it was this refuse to compromise in what became an issue of identity politics that caused the disintegration and eventually the disappearance of the movement. Its political legacy, however, manifested through the bi-dimensional covenant and the paradigm of the people’s two bodies was from lost. It was revived by the Patriots, who ended up claiming that, while their distinctive colonial identities were the result of voluntary social compacts and of their actual representation in the Colonial Assemblies, the only connections with Great Britain were the political compacts of each colony with the King, via chartering. Not surprising, once these political identities came under threat, the willingness to compromise disappeared as well. After Independence, these corporate peoples were willing to compromise among themselves once again, since the Articles of the Confederation guaranteed each an equal representation. The second Constitution proved to be more challenging, because it required the partial abandonment of the idea of equal corporate people at state level and the embrace of a collective American people that for many lacked any “chords of affection.” Nurturing these chords was the task ahead for the Federalists and the Whigs, but their efforts were largely damped by the increased populism and the development of the mass party system. Furthermore, as mass political parties consolidated, political rhetoric started increasingly to favor blatant appeals to racial, ethnic, and religious discrimination. Identity politics grew hand in hand with the first mass political parties and none of these developments were favorable to political compromise. In the process, some strange alliances have formed, with the nativists Know Nothings, openly anti-Catholics and anti-­immigration, ending up in the new Republican, anti-slavery party, while the pro-­slavery Democrats were very successfully courting the votes of the new immigrants. Two major lessons are to be learned from this history of the American Founding—and both can apply to other political contexts as well, not in

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the least to the European one. First, the people’s two bodies’ paradigm suggests that egalitarianism and meritocracy are not inherently incompatible, but while the electorate retains ultimate control over the politicians, the latter should not be held captive by the former. This cannot be done as long as the horizontal understanding of the people completely dominates public discourse, fueling resentments against any perceived form of elitism. As we have seen, populist rhetoric is inherently inimical to political compromises, being dominated by the majoritarian principle, and thus by the “us-versus-them” mentality. For, as Hamilton has argued, “the same state of the passions which fits the multitude, who have not a sufficient stock of reason and knowledge to guide them, for opposition to tyranny and oppression, very naturally leads them to a contempt and disregard of all authority” (quoted in Stourzh 1970: 24). The second lesson is that, although possible, political compromises “without a heart” are not lasting and resented as despicable sell-outs, furthering the polarization of public life. The bad news is that the marketization of politics, exacerbated nowadays by the new media, goes hand in hand with an explosion of divisive identity politics with no end in sight. The good news is that, while identities are integral parts of politics, corporate political identities can (and should) be nurtured in a similar way in which other identities—ethnic, religious, sexual, or partisan—are, going beyond their contractarian side. By doing so, the paradigm of the people’s two bodies also provides a more sophisticated understanding of the people as a political yet affectionate corporation of many other, rather fluid and unstable, corporations. Such an approach is in counter distinction to the homogeneity of a people understood as either a mere collection of equal (and equally abstract) individuals, divided between a majority and a minority, or a hotchpotch of competing identity groups. As things stay now, the paradigm of the people’s two bodies is largely forgotten or ignored, attacked from three sides—populism, partisanship, and identity politics—all hostile, in Hobbes words, to any “many lesser Common-wealths in the bowels of a greater, like wormes in the entrayles of a naturall man” (Hobbes (1994) [1688]: 218). Yet if Edmund Morgan is right in that all governments require make believe, we better believe that the paradigm of the people’s two bodies is able to resuscitate “the better angels of our nature,” and try harder to make the facts fit the fiction.

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Bibliography Achen, C. H., & Bartels, L. M. (2016). Democracy for Realists: Why Elections Do Not Produce Responsive Government. Princeton: Princeton University Press. Anonymous (1763). Some Thoughts on the Settlements and Government on our Colonies in North America, 10 March 1763, Add. Mss (Liverpool Papers), British Library. Quoted in J. P. Greene. (1982). The Background of the Articles of Confederation. Publius, 12(4), 15–44. Augustine. (1958). City of God (Intro. by Etienne Gilson). New  York: Image Books. Black, A. (1988). The Individual and Society. In J. H. Burns (Ed.), The Cambridge History of Medieval Political Thought (pp. 588–606). Cambridge: Cambridge University Press. Bodin, J. (1955). Six Books of the Commonwealth (Abr. and Trans. by M. J. Tooley). Oxford: Basil Blackwell. Brown, D. S. (2016). Moderates: The Vital Center of American Politics, from the Founding to Today. Chapel Hill: University of North Carolina Press. Burnet, G. (1688). An Inquiry Into the Measures of Submission to the Supreme Authority; And of the Grounds Upon Which It May Be Lawful or Necessary for Subjects to Defend Their Religion, Lives, and Liberties. London: [s.n.]. Available online at https://quod.lib.umich.edu/e/eebo/A30362.0001.001?view=toc. Accessed 1 Oct 2019. Canning, J. (1987). The Political Thought of Baldus de Ubaldis. Cambridge: Cambridge University Press. Charron, P. (1604) [1986]. De la sagesse (Texte revu par Barbara de Negroni). Paris: Fayard. Ciepley, D. (2017). Is the U.S.  Government a Corporation? The Corporate Genesis of Modern Constitutionalism. American Political Science Review, 111(2), 418–435. Comparato, V.  I. (2006). A Case of Modern Individualism: Politics and the Uneasiness of Intellectuals in the Baroque Age. In J.  Coleman (Ed.), The Individual in Political Theory and Practice (pp.  148–170). Oxford: Clarendon Press. Condren, C. (2006). Argument and Authority in Early Modern England: The Presupposition of Oaths and Offices. Cambridge: Cambridge University Press. de Bèze, T. [1970]. Du Droit des Magistrats, R.  M. Kingdon (Ed.). Geneva: Librairie Droz. Elazar, D.  J. (1972). American Federalism: A View from the States. New  York: Thomas Y. Crowell.

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3 Compromise and Majority Rule: How Their Dynamic Affects Democracy Patrick Overeem

3.1 Introduction “In the United States, as in all countries where the people reign, it is the majority that governs in the name of the people.” Thus Alexis de Tocqueville (2000: 165), holding that, in practice if not in theory, democracy comes down to majority rule. More than most political thinkers before him, he realized that a democracy is never governed by the people in its entirety, but only by a part, even if the major part, of it. And this equivocation of popular rule with majority rule made him acutely aware of the immense danger of the tyranny of the majority. In a situation of such tyranny, the majority is omnipresent and omnipotent: What I most reproach in democratic government, as it has been organized in the United States, is not, as many people in Europe claim, its weakness, but on the contrary, its irresistible force. And what is most repugnant to me

P. Overeem (*) Vrije Universiteit in Amsterdam, Amsterdam, The Netherlands e-mail: [email protected] © The Author(s) 2020 S. Baume, S. Novak (eds.), Compromises in Democracy, Palgrave Studies in Compromise after Conflict, https://doi.org/10.1007/978-3-030-40802-2_3

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in America is not the extreme form of freedom that reigns there, it is the lack of a guarantee against tyranny. When a man or a party suffers from an injustice in the United States, who do you want him to address? Public opinion? that is what forms the majority; the legislative body? it represents the majority and obeys it blindly; the executive power? it is named by the majority and serves as its passive instrument; the public forces? the public forces are nothing other than the majority in arms; the jury? the jury is the majority with the right to pronounce decrees: in certain states, the judges themselves are elected by the majority. (2000: 241)

What can be done against this danger? Tocqueville sees a great number of things that ‘temper’ the tyranny of the majority in America, such as administrative decentralization, religion, and several others (ibid., 250–302), but claims that there is “no guarantee against it” and “one must seek the causes of the mildness of government in circumstances and mores rather than in the laws” (ibid., 242). So only contingencies and political culture, as we would say today, are hindrances to majoritarian tyranny. There is no quick-fix. This is not a very uplifting picture of democracy for its modern adherents. One could wonder whether Tocqueville’s depiction is entirely accurate. Is democracy really tantamount to the rule of the majority? And is the majority’s rule so pervasive and unstoppable as he describes it? Is there not another, more positive side to democratic government as well? A side of checks and balances, equal dignity of all citizens, ordered liberty, and minority inclusion? Are decisions in a democracy not often taken by compromise rather than the imposition of the majority’s will? In this chapter, I analyze the intricate relationships between majority rule and compromise, in particular. Majority rule can be defined as the principle which says quite simply that, within in a group, the greater number decides. As Novak points out, this still allows for much variation, depending on “(a) the majority threshold (…); (b) the number of persons entitled to vote; (c) the quorum; and (4) [sic] the distribution (or weighting) of votes to the participants” (2014: 681). In other words, not all majorities are equal. Novak helpfully distinguishes between “simple majority, i.e., more than half of the participants in the vote; absolute majority, i.e., more than half of the individuals entitled to vote; qualified

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majority, which implies a threshold superior to simple majority; relative majority or plurality, which is not defined as a minimal threshold, but as the fact of receiving more votes than all the other options” (p. 681). So the apparently simple idea that ‘the greater number decides’ allows for various answers to questions like: number of what and greater than what? Compromise, in its most basic sense, can be understood as an agreement on a suboptimal outcome between two or more actors achieved through mutual concessions. This concept also implies four elements that are arguably present in every compromise, namely (a) an underlying and ongoing conflict; (b) points of partial agreement; (c) mutual concessions during the negotiations leading to the compromise; and (d) mutual consent to the ultimate agreement. Put more graphically, a compromise is always a midpoint between full conflict (disagreement) and full consensus (agreement) between all involved actors and between full concession (disagreeing) and full consent (agreeing) by each involved actor—with the midpoint tilting more toward one end of both dimensions or toward the other (Overeem 2016). Compromises vary in other ways, too, for instance with regard to the motives for striking them. Some are more ‘rational’ or strategic, only serving the actors’ own interests, while others are more ‘reasonable,’ based on a shared understanding of the issues at stake and serving common ends (Canivez 2011: 100). Other theorists have made similar distinctions, sometimes with slight variations (for instance Cohen-Almagor (2006: 440–445): principled and tactical compromises; and Margalit (2010: 39): anemic and sanguine compromises). But whatever the exact formulation, such differences are always a matter of degree and of little consequence for the argument in this chapter. Both notions, majority rule and compromise, are generally believed to be core elements of democracy, but they also seem to be squarely at odds with one another (e.g., Dahl 1956: 4; Gutmann & Thompson 2012: 152–160). These diverging intuitions are the starting point of my argument in this chapter. In the subsequent sections, I will first show how majority rule and compromise are both key elements of modern democracy. Then, I argue that they are fundamentally opposed to each other, cornerstones of two different kinds of democracy even (majoritarian and consensus democracy, as Lijphart (1984) has called them), but also that they are often closely related. And, I claim next, particularly where they

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go together, the dynamic between them is a threat to democracy. This central claim is then highlighted by a discussion of the case of referendums as a prime manifestation of majority rule and, surprisingly perhaps, political compromises. In the conclusion, I argue that the negative spiral into which the combination of majority rule and compromise leads democracy (especially in cases of referendums but also more generally) can only be reversed by mitigating majoritarianism. Compromises have disadvantages of their own, to be sure, but majority rule remains, as Tocqueville envisaged, the greater problem.

3.2 Majority Rule and Democracy Although democracy is of course the prime example of an “essentially contested concept” (Gallie 1956), this does not mean that nothing sensible can be said about its meaning. Several key elements may be discerned. Majority rule and compromise are both often regarded as core elements of democracy, albeit in different ways. Majority rule, to begin, seems to belong to the bare essentials of democracy (Dahl 1956). In some form or other, but mostly as what Sartori called “limited majority rule”, it tends to be part of even the thinnest conceptions of democracy, understood in the famous Lincoln formula as “government of the people, by the people, for the people” (1987: 31–38). And it is strongly associated with other key notions of democracy, such as political, legal, and social equality, popular sovereignty, and elective representation. Modern democracy can certainly not be reduced to the majoritarian principle, but neither, it seems, would it mean much without it. Majority rule is especially regarded as democratic because of its supposed relation with political equality. Grossman and Levin have brusquely declared: “Majority rule treats all individuals as equals” (1995: 788). And Melissa Schwartzberg has recently claimed: “Majority rule may be justified on many grounds, but its most compelling justifications derive from its unique capacity to weigh individual votes, reflecting individuals’ judgments, equally” (2018: 180). Other democratic theorists have shown, however, that these links between majority rule on the one hand and equality on the other are not so close and intrinsic as is often thought

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(Novak 2014: 682). The egalitarian principle (‘one man, one vote’) is not necessarily heeded in majority decisions, as actors may be given unequal numbers of votes (Novak 2014: 682). And the rule that all actors should have the same influence on the decision-making outcome (the so-called anonymity rule; May 1952), holds only for absolute majority decisions, but not for supermajority or simple majority rule. Not only does majority rule lack direct links to equality, it is not inherently democratic either. Majority rule takes place in non-democratic, non-egalitarian settings, too, and democracies can and do have other decision procedures as well. As Novak aptly concludes: “Majority decisions do not entail democracy, and democracy does not entail majority decision-making” (2014: 682). Majority rule is a contingent, not an intrinsic part of democracy. Still, the association of democracy with majority rule remains strong. It is, as noted, the decision procedure for crowds and democracy is government by crowds. Majority rule also seems the only decision rule that is simple enough to be understood and accepted by the general public. Although conceptually not intrinsic to democracy, it is a normative principle that is part of the common set of democratic aspirations. As Tocqueville observed so incisively, in democratic cultures, the rule of the majority is predominant not only via elections and formal legislation but also via public opinion (2000: 243–245). He claimed: “It is of the very essence of democratic governments that the empire of the majority is absolute; for in democracies, outside the majority there is nothing that resists it” (2000: 235).

3.3 Compromise and Democracy Just like majority rule, compromise is also recognized as belonging to democracy: “If politics is the art of the possible, compromise is the artistry of democracy” (Gutmann & Thompson 2012: 205). This is not only a matter of culture and ‘mindsets’, as Gutmann and Thompson have argued, but also of democratic institutions: “the institutional framework of constitutional democracies can be viewed as the institutionalization of compromise-making processes” (Canivez 2011: 104). Though compromise seems inherent to all kinds of politics, it is particularly ascribed to

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democratic politics—the assumption being, not implausibly, that compromises are less common in authoritarian and other non-democratic regimes (Dixit, Grossman & Gul 2000: 533). So compromise is part and parcel of democratic politics, but in a less clear and direct way than majority rule. It is situated more in the periphery than in the core of the semantic field of democracy, so to speak. Indeed, one could say it belongs to a different tradition of conceptualizing democracy. The tradition in which majority rule plays an important role, presupposes that the people is ultimately homogeneous, or at least sufficiently so for everyone to accept the majority decision. Letting the majority decide for the entire political community can, in this view, safely be done because there is no serious risk that the community will fall apart. In the other tradition, however, that of compromise, the people is seen as deeply heterogeneous. Compromise is required to the extent that democracy encompasses and fosters heterogeneity among people with different world views, life styles, and moralities. This is not the same as basing compromise on so-called value pluralism, which is the doctrine, usually associated with Isaiah Berlin, according to which all moral and other values are inherently incompatible and even incommensurable with each other (cf. Martijn Boot’s chapter in this volume). That doctrine, whether true or not, does not in itself entail a commitment to a politics of compromise (Overeem 2018; pace Bellamy 1999: 93–114; Benjamin 1990: 75–106). The democratic pluralism meant here is much less metaphysical: it is political rather than axiological (as, admittedly, it sometimes also is in Bellamy’s and Benjamin’s descriptions). It is the notion, grounded in empirical reality and sustained by democratic ideology, that late modern societies are irreducibly and irreversibly pluralistic—multi-cultural, multi-ethnic, and multi-religious—and therefore rife with moral disagreement. In the words of John Rawls: “This diversity of doctrines—the fact of pluralism—is not a mere historical condition that will soon pass away; it is, I believe, a permanent feature of the public culture of modern democracies” (1987: 4). Because this ‘fact of pluralism’ is real and cannot be overthrown without unacceptable amounts of coercion, compromise is essential to democratic politics. So impressions can easily mislead us: whereas majority rule seems deeply inherent to democracy but on closer inspection can be more or

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less detached from it, compromise seems rather contingent but turns out to be more central than expected. However this may be, both are elements of democracy as we know it and as most of us believe it should be. This raises the important question how the two relate to each other. This implies that favoring compromise over majority rule (as I do) is no less democratic than the opposite—it is tapping into another tradition.

3.4 Majority Rule Versus Compromise Majority rule and compromise may both be part of democracy, but it is easy to see that they are nonetheless opposed in many ways, too. While compromises are inclusive, giving all involved parties at least a share in the outcome of the decision-making process, majority decisions tend to be more exclusive: ‘the winner takes all’. And while compromise-making is typically complicated, slow, and ambiguous, majoritarian decision-­ making is simple, quick, and unequivocal (Novak 2014: 684). There is also a difference in scale of application: majority rule is a decision-making procedure particularly suited for crowds, while compromise (and, a fortiori, consensus or unanimity) better fits much smaller groups (Mansbridge 1980: xii). And last but not least, compromises tend to be made by political elites, whereas majority rule is typically, and for many theorists preferably, performed at the mass level, for instance through elections or referendums. Because of these and similar differences, democracy scholars (especially Lijphart 1984 and 1999) have argued there are actually two types of democracy: majoritarian democracies and consensus democracies. In the former, majority rule is the central principle, while in the latter compromise—not consensus, the name notwithstanding—is the preferred form of decision-making. In the words of Vatter: Modern liberal democracies are based on two competing visions of the democratic ideal. On the one hand, the majoritarian principle emphasizes democracy as government by the majority of the people, based on a concentration of power. The consensus principle, on the other hand, promotes the idea that democracy should represent as many people as possible and

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provide for multiple checks and balances—thereby limiting the power of the central government while providing for the representation of a broader array of interests. (2009: 125)

This simple categorization is further elaborated with all kinds of institutional and behavioral differences, not all of which are necessarily implicated by the underlying distinction, but which are nonetheless helpful to understand the variety of contemporary democratic governments. And while no pure cases of majoritarian and consensus democracy may exist since all countries tend to be mixtures of both, it is also true that at the most basic level, whenever a concrete political decision has to made, it has to be done either by majority rule or by compromise (or perhaps some other procedure, such as unanimity rule). The two cannot be used simultaneously. This fundamental incongruence between majority rule and compromise creates serious tensions in democratic theory and practice. The need to give majorities their say while also protecting minorities, to come to quick and clear decisions while keeping wide support, to take the people as a unified whole and still recognize its plurality—it seems an attractive but impossible endeavor. Democratic governments will understandably try (and claim) to combine the two, but cannot but fail in doing so. And precisely this has serious negative consequences for democracy itself. The present discontent with (representative) democracy and the rise of populist movements in some of the world’s most established democracies (the USA, the UK, and several continental European countries) can be understood in light of the unfulfilled promise that these opposing democratic aspirations can be combined. In response, populist voters and their leaders radically choose for one side—majoritarianism, presupposing the homogeneity of the nation—at the cost of the other, thereby endangering the very democratic ideal they seek to preserve. But before we see how that works, it first has to be acknowledged that majority rule and compromise also have surprisingly strong interrelations.

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3.5 T  ies Between Majority Rule and Compromise Given the clear contrasts between majority rule and compromise, it may seem counterintuitive to argue that there are also close ties between them. For a full understanding of their dynamic, however, their interrelations need to be highlighted as well. Most elementarily, the two notions have some structural similarities. They both play with the contrast between plurality and unity. Majority rule presupposes not only a difference between majority and minority, but also their unity, both being parts of a larger whole: majority rule could not function if both groups did not regard themselves as part of a wider community, for instance a nation-­ state. It requires a commitment to that community and the (implicit) promise not to secede from or rebel against it. This goes for compromise as well: parties in a compromise are typically opponents, but they are also linked to each other, even when they rather would not. Further, majority rule and compromise are both forward-looking. Although chosen because no better solution has appeared feasible in the past, their main thrust is prospective. Majority rule only works when the minority accepts the decision because it expects to become the majority sometime in the future. Precisely for this reason, decisions are often taken by oversized majorities (Schwartzberg 2018: 182). This is even more explicit for compromises. They involve, as etymology suggests, always a promise: “Compromises emerge because people recognize that they are engaged in a long-term endeavor. … If we had no expectation of future interactions, and no shared goal apart from the gains to be had from a single trade, then we would have minimal incentives to compromise rather than simply to bargain as one would in a one-shot game” (Schwartzberg 2018: 171). Hence, compromises, like most majority decisions, are always provisional, vain attempts to freeze time and to decide ‘for the time being’, with each involved party hoping to reach a better outcome later. Secondly, and less obviously, one can say that majority rule itself is a kind of compromise, albeit on the decision procedure rather than the substance of the issues at hand. A group chooses majority rule when it can neither achieve full consensus nor allow hegemons, but still wants to

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reach a decision. Under such circumstances, group members often find majority rule (in some form) an acceptable compromise. They forsake, at least temporarily and partially, their own claims to truth and justice and jointly agree to a third option, which translates their qualitative differences into a quantitative one: if we cannot agree, let the numbers decide, and we promise to stand by the outcome. Such ‘quantitative reductionism’ can obviously obfuscate the moral character of the values at stake (cf. Martijn Boot’s chapter in this volume), but it is a compromise if anything. Since no substantive agreement is found, but only a procedural one, such a compromise can be expected to break apart very quickly, but as we know from examples such as parliamentary elections and referendums but also the US Supreme Court (Waldron 2016: 246–273), institutionalization can make majoritarian forms of decision-making highly durable. Precisely because this kind of compromise deflects attention from substance to procedure, actors may be more willing to uphold it. Even those in the minority keep hopes that the procedure will serve them on a next occasion. Majority rule as a decision rule can, however, also be linked up with more substantive compromises—with the effect working in both directions. On the one hand, compromise often enables majority rule: compromises are necessary to create majorities in the first place (Baume 2017: 79–80). In Bellamy’s words, “compromise and majority rule often go together, with the former making possible and legitimising the latter” (2018: 316). Actual rule by majorities would often be impossible without ex ante compromises, for instance within and between political parties. Hence, Weinstock has argued that ‘big tent’ political parties—the kinds of large political parties that tend to be generated by simple plurality electoral systems, as in the USA and the UK—may be particularly appropriate sites for deliberation aimed at compromise that enable majorities in Congress and Parliament to govern (2018: 188). This suggests that compromise can be pivotal not only in consensus democracies but in majoritarian democracies as well. Indeed, according to Schwartzberg even more so: “Paradoxically, majority rule may be more likely to generate compromise, at least in the long run, than consensus-seeking institutions” (2018: 172). Precisely because of the temporary character of many majority decisions (particularly of simple majority decisions; usually not

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those of supermajorities) actors will be compromise-ready, she argues: “Under simple majority rule, policy changes are not once-in-a-­generation, and so the prospect of future revisions may both induce compromise ex ante and reduce the sense of loss ex post” (Schwartzberg 2018: 182). This will, however, very much depend on the topic and the constitutional and political circumstances at hand. On the other hand, majority decisions often generate ex post compromises. Every majority decision creates its own losers and one of the big questions of democratic politics is why they would accept the outcome of an election or another decision-making procedure: the puzzle of so-called loser’s consent (Anderson et  al. 2005). There may be many factors to explain this phenomenon—institutional, cultural, and tactical—but one of them definitely is also that after majority decisions, compromises tend to be made with regard to their interpretation and implementation. So we should not think of majority decisions (nor of compromises, for that matter) as discrete events; they are part of a stream of decisions and continuous modifications. The blow of their impact tends to be softened by compromises that are not so much political as well as legal, administrative, and social. These compromises are typically made behind the scenes, outside the limelight of the mass media. After the people or its representatives have decided on, for instance, exiting the European Union, building an airport, legalizing the use of cannabis, or any other topic, it is up to civil servants and other experts to hammer out the precise details of the policies required. This often requires painstaking negotiations to arrive at workable compromises that still align recognizably with the majority decision. So we see that majority rule and compromise are opposed but also often go together. Precisely this combination leads to problems because the ex ante and ex post compromises surrounding majority decisions are often not politically recognized. The general public only sees the majority decision (an election outcome, a parliamentary vote, and a referendum result), without understanding how the winning majority came into being and without knowing what happens with the majority decision later. It believes that ‘the majority has spoken’ and that its will should be executed right away, only to discover that the resulting policy is complex, slow, and ambiguous. This can lead to incomprehension and alienation

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(what the Germans call Politikverdrossenheit) and ultimately affect the quality of and support for constitutional democracy itself. This potentially explosive dynamic, I will now argue, particularly holds true for the majoritarian institution par excellence: referendums.

3.6 Referendums Referendums tend to be defended mainly with arguments about public participation and deliberation: “a referendum can play a crucial role in catalyzing public debate, in focusing the attention of everyone on the issues at hand, in engaging ordinary citizens to inform themselves on the core issues being debated” (Leydet 2004: 255). They also have important drawbacks, however. Leydet, although a qualified advocate of referendums herself, mentions three of them: referendums lead to division and fragmentation within the political community; they are “structurally polarizing: to a very complex set of propositions that address diverse and difficult issues, citizens are faced with only two options: Yes or No”; and “a referendum campaign is relatively short; too short to act as a ‘learning process’ through which the different sections of a divided society might come to better understand and appreciate the claims made by others and the delicate compromises needed in order to acknowledge and, to some extent, satisfy these claims” (2004: 253). In short, referendums engage citizens, but they also divide people, simplify issues, and precipitate decisions. Here I will concentrate on Leydet’s last point: the ways in which referendums affect the politics of compromise. Referendums are often presented as an alternative to compromises. The latter tend to be hammered out by professional elites, detached from the wider public, which leads to outcomes that often reflect the politically opportune more than what is substantially optimal or democratically desirable. A referendum, by contrast, if it is well designed (Cheneval & el-Wakil 2018), not only involves citizens but also brings decisions and policies more in line with their interests and preferences. It would be wrong, however, to think that referendums mean the end of compromise. In fact, like all forms of majority rule, they induce politicians to make all kinds of compromises both beforehand and afterwards.

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Ex ante, the mere possibility of a referendum influences the process of compromise-making. As Leydet has argued: “If the negotiators know in advance and work with the assumption that any negotiated agreement will be submitted to a national referendum, then this awareness will discipline their bargaining and direct them to an agreement more likely to stand the test of public debate” (2004: 245). A bit later, she explains: negotiators laboring under the shadow of a referendum would strive to ensure that, both in form and in content, the result of their discussions could be justified to a majority or the relevant majorities of citizens. They would thus have to search for the best available equilibrium between what they can agree on and what the public(s) can be persuaded to accept. Negotiators would be encouraged not to lose sight of the various audiences for their agreement: at the very minimum, the particular constituency they represent and the public as a whole. (2004: 249)

Usually, this anticipatory effect will be applauded as democratic and promoting responsiveness to the desires of the electorate. It can, of course, also distort the quality of the compromise: negotiators can aim at an agreement that is sufficiently popular to pass rather than at a substantially (legally, economically, technologically, or otherwise) better one. Two caveats are due, however. Firstly, in many political systems compromise is chosen not to enable a majority decision, but rather to prevent it. Existing institutions of majority rule can spur anticipatory compromises, so that majority decisions, including referendums, do not even have to take place (Schwartzberg 2018). This effect has been shown, for instance, for the Council of the European Union, where consensus is sought and compromises are struck in order to prevent voting (Novak 2013). It also applies to cases with referendums. Article 42 of the Danish constitution, for example, which is meant to protect minorities by giving them a relatively easily accessible opportunity to initiate a referendum against unwelcome passed bills, has led to a strong political culture of compromise-making—so much so, that the provided-for type of referendum has taken place only once, in 1963 (Forestiere 2008: 456–457, 461–463). This does not mean that article 42 is ineffective, of course, but

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that the Danes prefer to reach their goal—protecting the interests of minorities—by circumventing majoritarianism and opting for more consensual forms of politics instead. Even in referendum-prone Switzerland, it has worked in this way: In the quest to minimize the risks harbored by direct democracy, the informal search for a broadly supported compromise has required the formation of broadly supported multi-party governments, which make the important decisions. Extensive power sharing in the Swiss government is intended to produce solutions acceptable to a sufficiently large majority in parliament, for the risk of optional referendums and popular initiatives to be reduced. (Vatter 2009: 146)

In short, the mere ‘threat’ of a referendum can induce power sharing and compromise. Secondly, the unifying effect of referendums should not be exaggerated. It seems true that referendums force politicians to seek support outside of their own party and constituency and that they thus can “work as a strong incentive towards coalition-building and against fragmentation” (Leydet 2004: 255). But we should not forget that this decrease of fragmentation comes at the cost of polarization: coalitions are indeed built, but only to create two large camps (Yes vs. No). As the campaign proceeds, the chances that these two will come closer become smaller rather than bigger. Again, compromises are made ex ante to achieve a decisive majority, not to provide substantive agreement on the issues at hand. Referendums also typically lead to ex post compromise-making. In a referendum, voters are presented with a simple ballot (yes/no), which creates the illusion of an unequivocal outcome: the majority has pointed out the direction to go. But as we know since the Brexit referendum if not long before, things are rarely so clear-cut. Once the dust has settled, inevitably questions arise like: was there a more or less cohesive majority, can we know who were its members (and who not), and can we say what exactly it wanted? Usually, the answer is a threefold ‘no’. As Bellamy succinctly put it: “Within pluralist societies, appeals to a popular majority are largely mythical” (2018: 318; referring to Weale 2018). And the myth is not even innocent: “An appeal to a collective popular will that

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transcends [the] plurality of individual and group wills, as in a referendum, becomes almost by definition dominating” (Bellamy 2018: 318). Referendums, at least outside Switzerland and California, are such marked events in the political life of a nation, that ignoring or diluting the vote is politically impossible. And still, the outcome has to be modified if not diluted in order to be turned into legally, economically, politically, and socially acceptable legislation. Again, Brexit is a case in point: it shows very well that compromise-making between the involved actors (in casu the EU and UK, but also various actors within the UK and even within the Conservative Party) is inevitable, not only beforehand, but also after a referendum has been held. And this is not the exception but the rule. In all modern democracies, even those that have much experience with referendums like the polities just mentioned, referendum days are majoritarian intervals in the ongoing politics of compromise rather than vice versa. The combination of and contrast between them creates the dangerous dynamic highlighted before: as the majoritarian momentum of a referendum heightens expectations, the inevitable politics of compromise beforehand and afterwards can only create disappointment and resentment. This dynamic occurs with regular elections and parliamentary votes already, but even more so with the marked event of referendums. Rather than instruments of engagement, they thus easily become sources of alienation.

3.7 Mitigating Majoritarianism While it may be true that majority rule is a minimum requirement of democracy, arguably the quality of a democracy depends more on how it treats its minorities than on whether majorities can have their sway. Indeed, there is every reason to be distrustful of majorities and thus to be skeptical of majority rule as a guiding principle of good government. As Tocqueville eloquently put it: What therefore is a majority taken collectively, if not an individual who has opinions and most often interests contrary to another individual that one names the minority? Now, if you accept that one man vested with

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o­ mnipotence can abuse it against his adversaries, why not accept the same thing for a majority? Have men changed in character by being united? Have become more patient before obstacles by becoming stronger? As for me, I cannot believe it; and I shall never grant to several the power of doing everything that I refuse to a single one of those like me. (2000: 240)

In regard to the protection of minorities, compromise generally does better than majority rule (Bellamy 2018: 315). Surely, compromises can be very harmful for minorities as well, but overall a politics of compromise tends to be less dominating and to better track the interests of a wide range of stakeholders than majoritarian politics. Even two centuries after Tocqueville, the danger of the tyranny of the majority is never far away: “majoritarian decision-making risks creating persistent minorities of one or more segmented groups of citizens” (Bellamy 2018: 315). In order to reduce this danger of majoritarian tyranny, especially in segmented societies, Bellamy proposes two approaches: Here we may have reason to at least grant minorities a proportional voice in the community, so they are not consistently outvoted on collective matters (…), possibly by allowing a degree of self-government to different minority communities, or—more demandingly—to find ways whereby their concerns can be integrated into common policies, especially in areas where there is disagreement as to what is ‘completely undesirable’. (2018: 317)

Of these two approaches—self-government (arrangements in which minorities are granted some degree of autonomy) and integrative compromises (arrangements in which minorities and the majority share their interests to find a common solution)—it is clear that Bellamy prefers the latter: he hopes for a “willingness to find integrative compromises that recognize each citizen’s entitlement to be considered an equal member of the deliberative community” (2018: 318). Now, it is hard to disagree with the attractiveness of that solution, but one could be rather skeptical about its feasibility and durability. Integrative compromises, particularly for difficult political and moral issues (such as abortion, immigration, and markers of national identity), will be hard to find and probably not

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last very long. For this reason, besides the fact that it also more congruent with Tocqueville’s view, Bellamy’s other approach deserves more credit than he gives it. Emboldening minorities can be done in various ways. One is to increase the number of issues for which supermajorities are required. This is a widely used and time-tested—although certainly not perfect—way to protect minority rights (Schwartzberg 2014). Securing that laws have wide acceptance and not just narrow majority support has both practical and principled value (Wendt 2018). Self-government and subsidiarity—via administrative decentralization, devolution, and the like—would be even better. It recognizes, realistically, that in pluralistic societies the idea that the people has a singular will which can be represented through majority decisions is a phantasy (Bellamy 2018: 318). Besides empowering minorities, there are also many ways to directly mitigate majoritarianism and reduce the ‘adversary’ character of contemporary politics (Mansbridge 1980). One can think of increasing the number of institutions and practices typical of consensus democracy and of being very restrictive with referendums. Now I agree with Bellamy that one should assess political institutions such as referendums not categorically and not just by themselves, but as part of the ‘institutional mix’ characterizing a particular political system (2018: 312). My limited claim here is that we should not favor referendums out of discontent with the politics of compromises. Sure, there is “an unavoidable disjunction between the kind of compromise agreement that can come out of complex intergovernmental negotiations and the type of outcome that a majority of citizens might be made to support” (Leydet 2004: 235). But referendums are no solution for this undeniable problem. They rather make things worse, raising expectations to a level at which they can never be satisfied and only leading to disappointment: on the part of the losing minority, obviously, but also on the part of the majority when its vote is diluted in the policy-making process. Again, Brexit is the case that comes most readily to mind, but experiences with referendums in France, Denmark, Greece, the Netherlands, and various other countries show, I believe, the same trend of raised expectations and deepened disappointment. In order to break this negative spiral and thus, in the end, to preserve constitutional democracy, majoritarianism should, be considerably mitigated.

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3.8 Conclusion This chapter has shown how in modern democratic politics majority rule and compromise are related. I have drawn on Alexis de Tocqueville because I believe the thought of that great theorist of democracy can help us sense where modernity’s favorite regime is most jeopardized. We have seen that compromise and majority rule are opposed, but also closely related in various ways. And precisely the dynamic of back-and-forth between them poses dangers for the quality of constitutional democracy in general and for freedom in particular—dangers which, as Tocqueville already saw, are best averted by mitigating majority rule and strengthening minorities. In Democracy in America, Tocqueville admittedly deals hardly with compromise. For him, democracy is the unmitigated realization of the will of the majority (which is why he regarded the tyranny of the majority its greatest threat). He did not perceive democracy (at least as he had seen it in America) as full of compromises, nor did he consider compromise itself as a way to ‘temper’ majority rule. Perhaps he underestimated the heterogeneity of democratic society; perhaps he regarded a politics of compromise as too ‘elitist’ to be sustainable in democratic times. However that may be, near the end of the second volume, in the famous chapter on ‘What sort of despotism democratic nations have to fear’, he meaningfully speaks of modern democracy as a “sort of compromise between administrative despotism and popular sovereignty” (2000: 662; emphasis added). This seems an important example of his (critical) use of the term, but one can wonder whether this is a compromise at all. It is evidently not the kind of compromise resulting from negotiations between disagreeing parties. It is not even a compromise in which the elements go at the cost of each other; it rather seems an amalgam in which both elements are realized to the highest possible degree. The very combination of majority rule (to which for Tocqueville, as we have seen, popular sovereignty was tantamount) and compromise (epitomized by the administrative despotism he criticizes) creates a dynamic that causes severe risks to the quality of constitutional democracy in terms of democratic legitimacy, government effectiveness, and citizen trust. We see this happening,

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I believe, in our time. The compromises struck to create majorities, to prevent majority decisions, and to mitigate their impact can all be easily seen as elitist gaming, if not as democratic betrayal. In an ever-growing democratic frenzy of majoritarianism, they are regarded as signs of administrative or even political despotism which can be legitimately overthrown—if, at least, democratic citizens have the revolutionary spirit to do that.

Bibliography Anderson, C.  J., Blais, A., Bowler, S., Donovan, T., & Listhaug, O. (2005). Losers’ Consent: Elections and Democratic Legitimacy. Oxford: Oxford University Press. Baume, S. (2017). What Place Should Compromise Be Given in Democracy? A Reflection on Hans Kelsen’s Contribution. Négociations, 1(27), 73–89. Bellamy, R. (1999). Liberalism and Pluralism: Towards a Politics of Compromise. London: Routledge. Bellamy, R. (2018). Majority Rule, Compromise and the Democratic Legitimacy of Referendums. Swiss Political Science Review, 24(3), 312–319. Benjamin, M. (1990). Splitting the Difference: Compromise and Integrity in Ethics and Politics. Lawrence: University Press of Kansas. Canivez. (2011). Democracy and Compromise. In D. M. Gabbay, P. Canivez, S.  Rahman, & A.  Thiercelin (Eds.), Approaches to Legal Rationality: Logic, Epistemology, and the Unity of Science (pp. 95–118). Dordrecht: Springer. Cheneval, F., & A. el-Wakil. (2018). The Institutional Design of Referendums: Bottom-Up and Binding. Swiss Political Science Review, 24(3), 294–304. Cohen-Almagor, R. (2006). On Compromise and Coercion. Ratio Juris, 19(4), 434–455. Dahl, R. A. (1956). A Preface to Democratic Theory. Chicago: The University of Chicago Press. Dixit, A., Grossman, G. M., & Gul, F. (2000). The Dynamics of Political Compromise. Journal of Political Economy, 108(3), 531–568. Forestiere, C. (2008). New Institutionalism and Minority Protection in the National Legislatures of Finland and Denmark. Scandinavian Political Studies, 31(4), 448–468. Gallie, W.  B. (1956). Essentially Contested Concepts. Proceedings of the Aristotelian Society, 56, 167–198.

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Grossman, J. B., & Levin, D. M. (1995). Majority Rule, Minority Rights. In S.  M. Lipset (Ed.), The Encyclopedia of Democracy (Vol. II, pp.  787–793). Washington, DC: Congressional Quarterly. Gutmann, A., & Thompson, D. (2012). The Spirit of Compromise: Why Governing Demands It and Campaigning Undermines It. Princeton: Princeton University Press. Leydet, D. (2004). Compromise and Public Debate in Processes of Constitutional Reform: The Canadian Case. Social Science Information, 43(2), 233–262. Lijphart, A. (1984). Democracies: Patterns of Majoritarian and Consensus Government in Twenty-Two Countries. New Haven, CT: Yale University Press. Lijphart, A. (1999). Patterns of Democracy: Government Forms & Performance in Thirty-Six Countries. New Haven: Yale University Press. Mansbridge, J. J. (1980). Beyond Adversary Democracy. Chicago: University of Chicago Press. Margalit, A. (2010). On Compromise and Rotten Compromises. Princeton: Princeton University Press. May, K. O. (1952). A Set of Independent, Necessary and Sufficient Conditions for Simple Majority Decision. Econometrica, 20(4), 680–684. Novak, S. (2013). The Silence of Ministers: Consensus and Blame Avoidance in the Council of the European Union. Journal of Common Market Studies, 51(6), 1091–1107. Novak, S. (2014). Majority rule. Philosophy Compass, 9(10), 681–688. Overeem. (2016). Compromise. In A. Farazmand (Ed.), Global Encyclopedia of Public Administration, Public Policy, and Governance. Cham: Springer. Retrieved from http://springer.iq-technikum.de/referenceworkentry/ 10.1007/978-3-319-31816-5_2773-1, 8 Oct 2019. Overeem. (2018). Compromise, Value Pluralism, and Democratic Liberalism. In C.  F. Rostbøll & T.  Scavenius (Eds.), Compromise and Disagreement in Contemporary Political Theory (pp. 115–129). New York/London: Routledge. Rawls, J. (1987). The Idea of an Overlapping Consensus. Oxford Journal of Legal Studies, 7(1), 1–25. Sartori, G. (1987). The Theory of Democracy Revisited. Chatham: Chatham House. Schwartzberg, M. (2014). Counting the Many: The Origins and Limits of Supermajority Rule. Cambridge: Cambridge University Press. Schwartzberg, M. (2018). Uncompromising Democracy. In J.  Knight (Ed.), Compromise (pp. 167–185). New York: New York University Press.

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Tocqueville, Alexis de. (2000). Democracy in America (Translation and edition H.  C. Mansfield & D.  Winthrop; first ed. 1835–1840). Chicago: The University of Chicago Press. Vatter, A. (2009). Lijphart Expanded: Three Dimensions of Democracy in Advanced OECD Countries? European Political Science Review, 1(1), 125–154. Waldron, J. (2016). Political Political Theory: Essays on Institutions. Cambridge, MA: Harvard University Press. Weale, A. (2018). The Will of the People: A Modern Myth. Cambridge: Polity. Weinstock, D. (2018). Compromise in Deliberative Constitutionalism. In R.  Levy, H.  Kong, G.  Orr, & J.  King (Eds.), The Cambridge Handbook of Deliberative Constitutionalism (pp.  181–190). Cambridge: Cambridge University Press. Wendt, F. (2018). Compromise and the Value of Widely Accepted Laws. In C.  F. Rostbøll & T.  Scavenius (Eds.), Compromise and Disagreement in Contemporary Political Theory (pp. 50–62). New York & London: Routledge.

4 Compromise and Publicity in Democracy: An Ambiguous Relationship Sandrine Baume and Stéphanie Novak

4.1 Introduction Publicity and compromise each play a crucial role in contemporary democracies. Publicity is a highly valued aspect of good governance, while compromise is unavoidable when it comes to circumventing the tyranny of the majority and taking into account the plurality of preferences. In this chapter, we intend to return to the complex relationship We would like to thank the participants of the workshop “How do compromise and democracy get along?” (University of Lausanne, April 2017) and the panel “Compromise and democracy: how they get along” (ECPR General Conference, Hamburg, August 2018), as well as Yannis Papadopoulos and Simona Piattoni for their comments on earlier drafts of this chapter.

S. Baume Centre for Public Law, University of Lausanne, Lausanne, Switzerland e-mail: [email protected] S. Novak (*) Ca’ Foscari University of Venice, Venice, Italy e-mail: [email protected] © The Author(s) 2020 S. Baume, S. Novak (eds.), Compromises in Democracy, Palgrave Studies in Compromise after Conflict, https://doi.org/10.1007/978-3-030-40802-2_4

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between publicity and compromise in democracy. We mostly focus on legislative compromises, drawing on lawmaking in European national parliaments, the US Congress and EU institutions, since the publicity of the legislative process is considered necessary to make decision-makers accountable (Oleszek 2011: 1). Compromise can be perceived in two different ways. On the one hand, compromise can be understood as a strictly technical process, a tool used in settling conflicts or problem-solving. As Carens (1979: 123) puts it, compromise is a “settlement of differences by arbitration or by consent reached by mutual concession”. On the other hand, compromise can be seen as a political principle when it serves as the normative foundation of a political system. In this sense, we could also talk of a “culture of compromise” opposed to a majoritarian culture. For instance, compromise is a fundamental norm of Swedish democracy (Rustow 2015; Mattson 2015) and of the European Union political system (Abélès and Bellier 1996; Costa and Magnette 2003: 12; Papadopoulos and Magnette 2010). In the consociational model of democracy theorized by Lijphart (1968, 1977), compromise is an important political principle. Furthermore, beyond the different types of democracy, one could also argue, as Gutmann and Thompson (2012) do, that the “spirit of compromise” is fundamental to democracy. Depending on our understanding of compromise—as a technique or as a political principle—its evaluation can sometimes conflict. For instance, Gutmann and Thompson (2012: 27) observe how according to a poll, US citizens generally value compromise as a political principle. However, “a popular posture in democratic politics seems to be: say yes to compromise, but no to compromises”. This does not mean that compromise as a principle or norm does not raise any objections or resistance—far from it. However, even if compromise as a principle or norm is largely accepted in different contexts, compromise-building understood as a decisional process is often seen as barely compatible with publicity. One of the best-known examples of compromise struck in secrecy is the American Constitution. According to James Madison, its adoption was possible because the authors of the constitution did not have to deliberate in public (Farrand 1966: 479). To illustrate this common opinion according to which the search for compromise would

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barely be compatible with public settings, we can refer to the study of public problems by Claude Gilbert and Emmanuel Henry in which they “highlight […] the tension between […] the logic of publicization and the logic of keeping exchanges among actors out of the public eye” (2012: 33). Strebel et al. (2016) conducted a survey that examined the features that are important for democracy from a citizen’s perspective. To test citizens’ evaluations and views of democracy, the authors exposed the respondents to different trade-offs they had to resolve, such as “keeping decision-making processes transparent vs. enabling compromises” (Strebel et al. 2016: 18). This trade-off was tested through two statements: (1) “Political decision-making processes should always be as transparent as possible, even if this makes it harder to reach a compromise” and (2) “Sometimes it is more important that decision-makers are able to reach a compromise than to make the decision-making process transparent for everyone at any time” (Strebel et al. 2016: 27).1 These questions and affirmations all assume an incompatibility between compromise and transparency. It seems that we face a kind of paradox: Even when compromise is recognized as a legitimate political principle, the act of compromising is still considered as irreconcilable with publicity. This puzzling observation leads us to the present study: A scrutiny of the reasons why compromise and publicity (or transparency; we will discuss both concepts in Sect. 4.2) are often seen a priori and without question as contradictory elements. This pretended incompatibility is not without consequences regarding the democratic legitimacy of the compromises struck. Indeed, if compromising requires opacity, this is problematic in terms of democratic accountability since publicity is a prerequisite to the accountability of rule-makers (Thompson 1999; Naurin 2006; Stasavage 2007; Curtin et al. 2010: 937; Hood 2010; Strebel et al. 2019: 497). Spörer-Wagner and Marcinkowski (2010: 8) clearly pointed to the latter issue by stating that “privacy facilitates compromise-building, but democracy requires transparency”. Assuming that compromise is intrinsically incompatible 1  A revised version of this conference paper (Strebel et al. 2019) substitutes the concept of “negotiation” for the concept of “compromise”. However, we do not know to what extent this reflects a change in the experimental protocol.

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with publicity, one wonders how decision-makers in democracies can be held accountable when compromising. Section 4.2 will attempt to offer working definitions of the concepts of publicity and compromise. Section 4.3 will explore the ambivalent appreciation of compromise understood as a political principle or norm. Section 4.4 will ask why compromising and publicity are usually perceived as incompatible by exploring the effects of publicity on the ability to compromise. As such incompatibility serves to justify the limited publicity of legislative and policy-making settings, Sect. 4.5 will examine psychological, cultural, analytical and sociological arguments that mitigate this type of justification. We will conclude that the ambivalent relation between compromise and publicity partly contributes to the uncertain place of compromise in democracy.

4.2 T  he Concepts of Publicity and Compromise We will first attempt to offer working definitions of the concepts of publicity and compromise. We define publicity in relation to transparency. Transparency basically refers to the availability of information, although it does not guarantee accessibility. Publicity complements transparency because it refers to the accessibility of information and, in this way, it is a condition for accountability (Naurin 2006: 91). Naurin identifies three factors accounting for possible gaps between transparency and publicity: First, the absence of intermediaries between actions and discourses of officials and the public opinion, which would enable the activities of the latter to become visible and intelligible (this role is traditionally assigned to the media). Second, rational ignorance could be a factor in the discrepancy between transparency and publicity, as citizens do not invest in information-seeking if the cost of acquiring information exceeds the potential benefit that the knowledge would provide. Third, citizens’ cognitive limits could explain why available information is not processed (Baume and Papadopoulos 2018: 171). There is another distinction that is not mentioned by Naurin: People tend to ignore or neglect

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information that is not convergent with their beliefs (Lord 2006: 12). Building on this distinction between transparency and publicity, Naurin affirms that accountability is “primarily a function of publicity rather than transparency” (Naurin 2006: 91). Actually, accountability is only possible if the “information about agency behaviour is there for those principals who are willing and able to seek it” (Naurin 2006: 91). However, it must be emphasized that publicity is not a sufficient condition for accountability, as mechanisms of sanctions for the agents are required (Naurin 2006: 92).2 This distinction made by Naurin between publicity and transparency has prompted us to use the word “publicity”, as our contribution focuses on the relationship between compromise, accountability and publicity. What also matters for the purpose of this research is that information is disclosed before the process is complete, as we ask to what extent publicity prevents actors from compromising. As we said in the introduction, compromise can first be defined as the process of exchanging concessions. Here, compromise is to be understood as a strictly technical process, a tool used in settling conflicts or problem-solving. At the heart of the act of compromise is a state of conflict or disagreement (Golding 1979: 8–9); the actors accept that they will lose something and show a willingness to cooperate because they accept to exchange mutual concessions or logrolling (Bourdreaux and Lee 1997: 365). The fundamental notion of reciprocity that underlies compromise is also a definitional feature of what Gutmann and Thompson called the “compromising mindset” (2010, 2012: 16–17, 34–35). It is worth noting that despite some variation between scholars, it is widely agreed that the idea of mutual concession is an essential aspect of the non-evaluative definitions of compromise. Mutual concession as a defining element appears in the works of scholars such as Bellamy (2012: 448), Kelsen (2013 [1929]: 102), May (2011: 583), Rintala (1969: 327) and Van Parijs (2012: 467). Second, compromise is not only conceived as a decisional technique. Compromise is a political principle or norm that is more or less valued  The existence of Naurin’s distinction does not mean that the actual use of both notions in the literature follows his conceptual differentiation (Baume and Papadopoulos 2018). 2

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depending on the political culture in which it is invoked. Compromise is loaded with strong evaluative perceptions, either positive or depreciative.3 Compromise as a political principle can be perceived as fundamental to the functioning of a political system or, on the contrary, as a betrayal of the different groups’ preferences or values that leads to suboptimal agreements. The ambivalence associated with compromise seen as a political principle is highlighted by Margalit (2010: 6), when he says that compromise can be seen as a “boo-hurrah” concept. Publicity and compromise are both central to democratic decision-­ making. However, as we have seen, publicity is most often seen as a democratic tenet that is normatively unquestionable because it guarantees the accountability of decision-makers, while compromise generates strong ambivalent evaluation. In the following sections, we analyse the relation between publicity and compromise, taking into account compromise’s ambiguous status.

4.3 Compromise as a Political Principle In this section, we aim to explore the ambivalent appreciation of compromise understood as a political principle or norm. There are two divergent evaluations of this principle: On the one hand, compromise might be praised as a fundamental political principle or mindset (Gutmann and Thompson 2012) and publicly acknowledged as such—as demonstrated for instance by President Obama’s remark that “This country was founded on compromise”.4 On the other hand, compromise may be considered as close to a betrayal (Tillyris 2017) and is often perceived as “messy, the dreary stuff of day-to-day politics” (Margalit 2010: 5–6). This ambivalence generated by the principle of compromise has several sources: first, analytical reasons, associated with the concept of compromise itself; second, institutional grounds; and third, diverging normative conceptions of politics in democratic contexts.  In the Webster’s New Collegiate Dictionary (quoted by Carens 1979: 23), compromise is defined as “a concession to something derogatory, hazardous, or objectionable; a prejudicial concession; a surrender, as a compromise of character”. 4  This was given by Fumurescu (2013: 1). 3

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First, such an ambivalence related to political compromises can be analytically explained by what Luban calls “the paradox of compromise” (Luban 1985: 414). If we defend a principle, we also defend its fulfilment. Consequently, compromising presupposes that we renounce part of the realization of our own principles. However, declining a compromise implies abandoning every possibility of the realization of each part of the principle we support. Compromising means there is a chance that one’s principle will be partly realized, which could be perceived as better than nothing. This means that it is possible to decline the idea of compromise for moral or strategic reasons because the principle cannot be completely realized, but it is also possible to defend the practice of compromising because it allows for the partial realization of a principle that would not otherwise be realized at all. Consequently, compromise remains intrinsically ambivalent, either in its support or in its rejection. Second, the evaluation of compromise seen as a political principle depends on the institutional context. In the so-called consensus democracies—in opposition to majoritarian democracies—decision-making implies vast compromises among political forces (Linder 2010: 128), which are in such contexts valorized and considered as essential to maintain political stability.5 For instance, “the Swiss system keeps being shaped by multiple veto points, which require broad-based compromises for successful policy-making” (Bochsler et al. 2015: 483). Belgium is another paradigmatic case of a political regime in which the institutional setting fosters compromise-building deemed as necessary to overcome linguistic and party divisions (Vigour 2009; see also the chapter by Bogaards in this volume). The EU legislative process also fosters compromise-building and in public statements, member states’ ministers regularly acknowledge their endeavour to work in a “spirit of compromise” to justify some concessions they have made in order to allow the adoption of a piece of  “According to Lijphart (1984, 1999), the two types of democracy ideally are diametrically opposed with regards to power distribution. Majoritarian democracy, with its bare majority cabinet, two-­ party system, disproportional system of elections, unitary and centralized government, as well as additional elements, is as a basic principle centered on the concentration of power. Consensus democracy, on the other hand, stresses power-sharing on the basis of a broad coalition cabinet, a proportional electoral system, a multi-party system, federal and decentralized government, strong bicameralism, and other institutions” (Vatter 2009: 126). 5

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legislation (Novak and Hillebrandt 2020: 150).6 More broadly, in parliamentary democracies, governmental coalitions are associated with compromise-building—meaning that to function, a governmental coalition relies on compromise-building (Martin and Vanberg 2014). On the contrary, in majoritarian regimes in which coalitional practices tend to be excluded—for instance, France, where the Fifth Republic has seen an alternation between the government of right and left parties (see Bué and Desage 2009: 88)—compromise appears as criticisable and is not publicly acknowledged as an important principle.7 As shown by Desage (2009), political actors emphasize competition and conflict in their official discourse, which does not prevent them from building compromises with their public opponents behind closed doors. Third, diverging evaluation of political compromises corresponds also with divergent conceptions of democratic politics. Are democratic politics essentially associated with moderation, accommodation or, on the contrary, with (irreducible) conflicts? The answer to that question generates different attitudes towards compromise. For instance, compromise is praised by Mill, because it creates a climate of moderation among institutions which is considered as paramount in representative governments: An indispensable requisite in the practical conduct of politics […] is the readiness to compromise, a willingness to concede something to opponents and to shape good measures so as to be as little offensive as possible to persons of the opposite view. (Mill 1977: 514)

 See, for instance, this public statement by the Lithuanian delegation regarding an agriculture regulation: “Lithuania is of the opinion that merging of those two schemes does not bring any added value from the perspectives of their effectiveness, simplification and reduction of administrative burden. [...] However, Lithuania has agreed with the overall compromise that has been reached on 16th of December 2015 in order to ensure the continuity of current schemes and smooth implementation of principal objectives of these schemes” (Council. April 2016a). Or, take this public statement by the Croatian delegation: “Croatia welcomes all the efforts made to reach a compromise on the Proposal for a directive of the European Parliament and of the Council on the reduction of national emissions of certain atmospheric pollutants and amending Directive 2003/35/EC with a view to significantly improve the environment and reduce the adverse health effects of air pollution” (Council. December 2016b). 7  Which does not mean that in practice parliamentary activities do not imply the search for compromise (Lascoumes 2009). 6

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Kuflik expressed a similar conception when he affirmed that the “primary purpose of truly democratic institutions is to inhibit the formation of policies that are not, in large measure, the product of accommodation on the widest possible scale” (1979: 41). Elshtain assumes that democratic politics necessarily entail compromise: “Compromise is not a mediocre way to do politics; it is an adventure, the only way to do democratic politics” (1995: 61, cited by Bourdreaux and Lee 1997: 365). Finally, for Kelsen, compromises play an essential role in democracy because they fulfil—at least approximately—the requirement of self-determination, as “compromise means the solution of a conflict by a norm that neither entirely conforms with the interests of one party, nor entirely contradicts the interests of the other” (Kelsen 2007: 288). On the contrary, compromise can be normatively devaluated because it conflicts with specific conceptions of politics or because it undermines democracy or democratic values. Valorization of compromise is not compatible with an understanding of politics which assumes that conflicts (at least the major ones) are irreducible. Max Adler—a prominent thinker of the Austro-Marxist school—is an eloquent illustrator of this. Adler’s argument against compromise, which underlines the irreducibility of class conflicts (Adler 1927), has some similarities with the contemporary agonistic model of democracy advanced by Chantal Mouffe (1998: 13). Her conception of politics includes an irreducible conflictual dimension that is not compatible with an understanding of democracy as being oriented toward the quest for compromise. Compromising is also perceived as contrary to a certain idea of the state’s political unity as hostile to pluralism. Carl Schmitt’s strong devaluation of political compromises is linked to such an idea about the state’s unity. Compromises (above all, those committed by political parties) are deleterious to the unity of the state because they acknowledge the fragmentation of the political body and political competition—in a word, pluralism (Schmitt 2007: 68). Compromises also raise objections because they would undermine democracy or democratic values, for example in affecting disadvantaged groups. Ruser and Machin claim that among compromisers, inequalities persist and may even be exacerbated (2017: 25). In that perspective, the power relations among compromisers are not annihilated but even strengthened by compromising. Moreover, Ruser and Machin (2017:

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29–47) claim that compromises would emaciate the plurality of political debates, because compromise solutions tend to rule out more original and less consensual perspectives. Therefore, as a political principle, compromise can be praised or criticized for analytical reasons, depending on the institutional setting, and also because of divergent conceptions of democratic politics. The fact that compromise can be publicly acknowledged as a legitimate and even fundamental political principle or, on the contrary, considered as a threat to democracy demonstrates its ambivalent public acceptance. However, even in political systems in which compromise is considered a legitimate principle, this public acknowledgement of compromise does not mean that compromise-building holds up in public. On the contrary, even in the Belgian institutions for instance, compromise-building takes place behind closed doors, and in particular in the framework of the “Intercabinet” (Vigour 2009: 75–79). More broadly, governmental coalitions—which entail accommodation—tend to privilege secret settings (Bué and Desage 2009: 32–33). The fact that compromise is simultaneously publicly acknowledged as a legitimate and necessary political principle, and perceived as incompatible with publicity, is somewhat paradoxical and makes it necessary to investigate further the tension between the act of compromising and publicity.

4.4 Publicity as an Obstacle to Compromising The starting point of this section is the following: Compromise and disclosure are usually deemed incompatible or difficult to reconcile because decision-makers would be reluctant to make concessions in public, an incompatibility that is invoked by both scholars and practitioners (Schelling 1956: 288; Gutmann and Thompson 1998: 115–116; Stasavage 2004: 2; Schmidt 2008: 313–316; Armingeon 2011; Lee 2019: 3). According to Luce, “Behind closed doors compromise is possible; before spectators it is difficult” (1922: 151, cited by Oleszek 2011: 5). Pruitt observes that “surveillance is more likely to make negotiators hard-­ nosed because this is what their constituents are usually perceived (with good reason) as wanting, there is a strong tendency for heroic grandstanding” (Pruitt 2002: 90; see also Pruitt et al. 1986: 265). Therefore,

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according to Pruitt, it is often necessary to move the decisional process to private settings in order to find agreements. Since publicity is believed to reduce the ability to compromise, our aim is here to further explore the effects of publicity on decision-makers’ behaviour and the reasons why compromise and publicity are usually perceived as barely compatible. We will rely on testimonies and scientific studies that identify different effects of publicity on the ability to compromise. The effects of publicity on the ability to compromise deserve further attention to understand the links between compromise and democracy because even in democratic settings, actors or institutions justify a priori or ex post the secrecy of decisional processes by invoking the incompatibility between publicity and compromise. The best-known instance of such a claim might be by Madison, who stated that if the Federal Convention had deliberated in public, its members would have been prevented from changing their positions after listening to counterarguments. According to Madison, it is because of the fear of being deemed incoherent by the public that the constitution-makers would have stuck to the same position: Had the members committed themselves publicly at first, they would have afterwards supposed consistency required them to maintain their ground, whereas by secret discussion, no man felt himself obliged to retain his opinions any longer than he was satisfied of their propriety and truth, and was open to the force of argument. (Farrand 1966: 479)

Such claim regards the quality of deliberation (as opposed to bargaining, Elster 2000) and not the ability to compromise, as Madison refers to the “force of argument[s]” and not to concession-making. However, at its heart we find the idea that publicity prevents shifting positions because the actors believe that the public would blame them. As compromise implies that actors accept changing their positions, we can apply the line of reasoning to it that originally regarded the effects of publicity on the quality of deliberation. Actually, this is what the General Secretariat of the Council of the EU did in 1994 when it had to justify the secrecy of its proceedings in a lawsuit launched by a journalist who contested the Council’s decision not to grant him access to some documents. The Secretariat argued that:

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The Council normally works through a process of negotiation and compromise, in the course of which its members freely express their national preoccupation and positions. If agreement is to be reached, they will frequently be called upon to move from those positions […] on a particular point or points. This process, vital to the adoption of Community legislation, would be compromised if delegations were constantly mindful of the fact that the positions they were taking, as recorded in Council minutes, could at any time be made public through the granting of access to these documents, independently of a positive Council decision. (Council Legal Service 1994)

In the cases of the Federal Convention and of the Council of the EU, we see a defence of restrictions in the publicity of the debates and proceedings with the argument that publicity would jeopardize their ability to change positions. Stasavage further characterized this type of effect by arguing that publicity can lead the actors to “posture”, which can be defined as an “incentive for representatives to adopt uncompromising positions during negotiations in order to demonstrate to their constituents that they are effective or committed bargainers” (Stasavage 2004: 9). Publicity can rigidify the legislators’ positions while secrecy (or, at least, relative discretion) can offer legislators a certain amount of leeway and grant them the opportunity to change their minds and bridge their differences, which is the end goal of compromise (Chambers 2004: 394). Furthermore, posturing activates “a risk of pandering by public officials” (Stasavage 2004: 8). Pandering “can be defined as a situation where elected representatives choose policies based on voter opinion, even if representatives themselves believe that voters are incorrectly informed about their true interests” (Stasavage 2004: 8). In other words, publicity encourages public officials to submit to public opinion. Because they are observed and scrutinized, representatives are reluctant to emancipate themselves from their electors’ preferences, mainly for reasons of electioneering. Non-contemporary authors have described the effect of pandering, including John Stuart Mill who was concerned about the “yoke of public opinion” (Mill 1989: 12) and Alexis de Tocqueville, who particularly feared the “tyranny of public opinion” (Tocqueville 1981: 348 sq).

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In both posturing and pandering, the actors, under the effect of publicity, behave in accordance with the supposed constituents’ expectations rather than exchanging with their peers. Such effect was observed by Frances Lee in her address to the Congress (2019: 4). According to her, this leads the actors to “message” their public audience, a behaviour that is detrimental to the decisional process: The members of the Congress, “rather than communicating with other members” (ibid.) send messages to their constituents and use publicity as a way to earn points against their political adversaries. By generating more adversarial stances, publicity tends to block the decisional process. This third effect of publicity, i.e. messaging, should be distinguished from pandering because when members of the Congress message, their aim is not even to pass laws anymore. Former senator Olympia J. Snowe observes that [m]uch of what occurs in Congress today is what is often called “political messaging”. Rather than putting forward a plausible, realistic solution to a problem, members on both sides offer legislation that is designed to make a political statement. Specifically, the bill or amendment is drafted to make the opposing side look bad on an issue and it is not intended to ever actually pass. (cited by Lee 2019: 5)

To avoid legislative deadlock, congressional leaders often privilege secluded settings (Lee 2019: 6). Moreover, publicity can undermine the ability to compromise by accelerating and simplifying debates, as compromise requires the ability to talk at length and thus develop complex arguments and deals. Publicity can accelerate debates by tempting actors to focus on the aspects that are most salient to the public and to overlook other aspects. Publicity can also impoverish debates and the quality of deliberation by encouraging actors to avoid dealing with aspects that the public might see as technical. For instance, in her study of the constitutional debate in Canada, Leydet (2004) considers that compromise is not easy to explain in public because the debated issues are complex. The complexity and the technicity of the debates require private proceedings to allow the actors enough time and intellectual freedom to exchange arguments. Such acceleration and simplification are even more likely when the issue at stake has to do with the

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identity of the group of citizens that will have to approve of the compromise, as in the case of the Canadian constitutional debate (Leydet 2004: 240). However, such effects were also invoked in the case of legislative debates. Gutmann and Thompson argue that secrecy is a “justifiable way of encouraging better discussion and fuller consideration of legislation. Publicity increases political pressure on legislators to bring a popular bill to a vote before it has received thorough discussion in committee” (1998: 115). Finally, publicity can limit representatives’ ability to use reason and can foster passions. In this respect, when politicians express themselves in the public eye, they appeal to the common good and to common values, but “with a twist”: “under the ‘glare’ of publicity these arguments may become shallow, poorly reasoned, or appeal to the worst that we have in common” (Chambers 2004: 393). The tumult of passion does not create favourable conditions for compromise. In 1792, Alexander Hamilton, considering the deliberations of the US Constitutional Convention, wrote: Had the deliberations been open while going on, the clamors of faction would have prevented any satisfactory result; had they been afterwards disclosed, much food would have been afforded to inflammatory declamation. Propositions made without due reflection, and perhaps abandoned by the proposers themselves on more mature reflection, would have been handles for a profusion of ill-natured accusation. Every infallible declaimer, taking his own ideas as the perfect standard, would have railed without measure or mercy at every member of the Convention who had gone a single line beyond his standard. (Brown 1987–1988: 906)

In summary, we have distinguished five effects of publicity on the ability to compromise: (a) Publicity prevents actors from changing positions and leads them to posture because they do not want to be perceived as incoherent by the public; (b) publicity leads actors to pander; (c) publicity leads actors to prioritize messaging over making laws; (d) publicity undermines the quality of debates by deterring actors from taking time to discuss aspects that are perceived as too complex or technical, while compromising often requires such discussions; and (e) publicity is also detrimental to the quality of debates because it fosters passion and deters

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the use of reason, while the “spirit of compromise” (Gutmann and Thompson 2012), which implies forging and exchanging concessions, invites actors to act rationally. These effects are rooted in the decision-­ makers’ perceptions or expectations regarding their constituents’ preferences and in the belief that more compromising stances would entail costs or public sanctions for the decision-makers. Therefore, the latter can seek to decide in secluded settings because they want to free themselves from external pressure. We should distinguish these effects, which depend on how decision-­ makers perceive their constituents’ expectations, from other types of obstacles to compromising that publicity can generate. Indeed, the fact that legislative debates are public has an impact on the audience. First, publicity can trigger organized interests’ pressures and empower lobbies; such pressures might also be detrimental to compromise. This was observed in studies of the effects of sunshine reforms of the 1970s on the US Congress (Arnold 1990: 275; Oleszek 2011: 6–7 and 14; D’Angelo and Ranalli 2019; Lee 2019: 3sq). Compromising often requires linking issues to allow actors to play on the various intensities of their preferences, so that actor A might be able to make a concession on an issue that she deems less important, while actor B might in exchange grant her a concession on another issue that she values less than B.  However, the fact that organized interests—and also media—can access reports on ongoing negotiations might prevent lawmakers from linking issues and exchanging concessions since a report on an issue seen in isolation might lead these groups to oppose it without seeing that concessions on such an issue are necessary to allow a broader agreement (Lee 2019: 3–4). Second, in a legislative context, publicity might encourage electors to exert political pressure on their representatives (Chambers 2004: 394; Gutmann and Thompson 1998); this pressure may occur before legislators can even discuss the content of legislation in assemblies. Such pressure attempts to guarantee that legislators conform their discourse and votes to their electors’ desiderata, and might generate pandering. Moreover, the contemporary use of media triggers the polarization of the citizenry: It has been shown that because citizens can now choose which channel of media they will consult for information, they tend to select

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media that reflect their own political beliefs. Accordingly, selective partisan exposure reinforces their pre-existing beliefs (Sunstein 2009; Stroud 2010). Such indirect consequences of the publicity of debates will also likely hamper compromise-building (“pandering”, see above) and might even generate a vicious cycle: Representatives tend to be inflexible because they believe that this corresponds to their constituents’ expectations, and the citizenry becomes increasingly polarized due to selective exposure to partisan messages. This in turn reinforces the decision-makers’ tendency to inflexibility and so on.

4.5 D  iscussing the Incompatibility Between Publicity and Compromising Analysts and practitioners might argue that secrecy is necessary to reach agreement and that many laws and policies would not have been adopted if seclusion had been impossible. However, we would now like to discuss this argument further. We do not contest that publicity might entail the effects mentioned in Sect. 4.4. On the contrary, we contend that at the heart of many contemporary democracies lies a paradox: Compromise can be openly praised as a political principle yet its practice requires seclusion, which is normatively problematic in the context of democracy. Therefore, seclusion requires justification, which is to be found in various negative effects of publicity described above. This section aims to explore some psychological, cultural, analytical and sociological grounds that lead us to qualify the scope of justification for seclusion. First, if we adopt a psychological perspective, we note that arguing that publicity necessarily rigidifies behaviours may be inaccurate. Experiments show that “surveillance of the negotiation by constituents tends to reinforce perceived constituent preferences. If negotiators think that their constituents favor conciliation, surveillance will push them toward concession-­making” (Pruitt 2002: 90; see also Pruitt et al. 1986). Publicity is more likely to lead the agents to posture because they usually expect that their principals will favour hard bargaining and would sanction concession-­making. However, it is important to note that the effect that is most often invoked to justify secrecy should be embedded in a broader

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and not unilateral psychological mechanism discovered by Organ (1971): Negotiators will try to satisfy their constituents “by acting the way they think their constituents would like them to act” (Pruitt et al. 1986: 265; Novak 2011; Novak and Hillebrandt 2020). This finding is important because it means, as pointed by Pruitt, that if negotiators believe that their constituents would support a compromise, they will strive to find one. This first observation pertaining to the psychology of the representative leads us to qualify the argument of an inherent incompatibility between compromise and publicity, and to consider the hypothesis of a cultural limitation of the same argument. As noted in Sect. 4.3, depending on the type or conception of democracy, compromise is valued as a fundamental political principle or criticized as conflicting with specific conceptions of politics or as undermining democracy or democratic values. This relativity of the appreciation of compromise also means that in political cultures in which compromise is praised, representatives might be less inclined to assume that their constituents condemn compromise. The success of populist ideologies within liberal democracies and the growing polarization caused by the contemporary use of media all show that a spirit of non-compromise dominates the political landscape (Sunstein 2009). However, these contemporary developments should not lead us to essentialize the hostility to compromise or to conclude that compromising definitely stands against publicity. In a context in which compromise is valued, given that in public settings representatives tend to behave according to what they expect to be the reactions of their constituents, compromising in public might not be impossible (Novak and Hillebrandt 2020). In addition, obstructionism might also entail public sanctions, and it is not so obvious that its costs are inferior to the costs of flexibility. For instance, if we turn to the case of the European Union, the institutional actors (Commission, Council of the EU and European Parliament) generally conceive of the spirit of compromise as a positive value and condemn obstructionism (Dehousse 1995; Abélès and Bellier 1996; Hayes-Renshaw et al. 2006). For this reason, by being obstructionist, an uncompromising representative can jeopardize his or her position in future negotiations. Actually, it is not rare that states’ representatives publicly acknowledge that they finally support a measure that they find

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unsatisfying “for the sake of compromise” (e.g., see note 6). When deciding in public, the EU member states’ representatives have to weigh the costs of flexibility and the costs of obstructionism, taking into consideration their constituencies and the representatives of the other EU member states with whom they will have to negotiate again in the future. When they pass laws, member states often decide by consensus within the Council of the EU and avoid voting explicitly because most representatives expect public sanctions in the event that their countries cast isolated negative votes (Novak 2013). This example supports our claim that the incompatibility between compromise and publicity is grounded in assumptions that are associated with specific political systems that might not hold in other political cultures (for the example of the EU, see Novak and Hillebrandt 2020: 150–151). On another level, the usual justification of secrecy as a condition to compromise has analytical limitations that are precisely grounded in one of the mechanisms identified in Sect. 4.4. Assuming that publicity necessarily entails posturing would mean that the representatives are partly driven by the fear of appearing incoherent in public and would feel freer to change position behind closed doors. However, this fear might also characterize their behaviour behind closed doors. Even if representatives are not “bound by delegation relationship” (Papadopoulos 2014: 280) in closed meetings, they have to submit to peer accountability “based on mutual monitoring of one another’s performance within a network of groups” (Goodin 2003: 378). Such peer accountability could prompt decision-makers to stick to their positions behind closed doors so as to not lose face, for example. In closed meetings, debates are also exposed to a public, although this public is an internal audience composed of the other representatives (Novak 2011: 4; Novak and Hillebrandt 2020: 150–151). If the representatives are accountable to this audience too, they might also want to stick to their position, for example because of pride. This observation entails two implications. On the one hand, the presence of a public wider than the internal public might exacerbate effects already observable behind closed doors and rigidify the representatives’ positions even more. On the other hand, to justify limits to publicity by arguing that it prevents compromise might not be convincing as, even behind closed doors, peer pressure may reduce the ability to compromise.

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Finally, when the incompatibility between publicity and compromise serves as a basis to justify secrecy, one should not overlook the fact that this incompatibility can hide less honourable motivations. Political sociologists have shown how secrecy can be a way for policy-makers to find compromises that allow them to maintain good relations and to satisfy their peers’ expectations at the cost of their partisan affiliation. Desage (2009) observed that private settings allow the actors to conceal from the public the fact that they might betray their ideological or political affiliation by accommodating their position to follow a corporative logic. Desage showed how in a communauté urbaine (i.e., a group of French cities), mayors favour secrecy to have the freedom to find arrangements with their peers even if those arrangements contradict their partisan affiliation. This observation is in line with Gilbert and Henry’s contention that the secluded search for accommodation and compromise might aim to “maintain relations and balances among actors”, which takes the priority over the content of policies (2012: 44). They show how such incentives explain that the use of asbestos was authorized in France even though its harmful effects were known. Such compromise between different kinds of interests was made possible thanks to the secrecy of the exchanges between the actors involved in this decisional process. The fact that compromise was reached in a secluded setting is problematic because it entailed high costs for third parties. These two studies of compromises forged in secret settings because the actors were driven by professional logics and betrayed their partisan belonging or neglected fundamental public interests reveal the ambivalence of compromising in private settings. On the one hand, one can argue that secrecy is necessary to produce agreements because publicity makes deadlocks more likely. On the other hand, secrecy creates the risk of unethical or corrupt compromises.

4.6 Conclusion This chapter aimed to examine a blind spot in the literature on the relationship between publicity and compromise. The incompatibility between these concepts is either taken for granted or presupposed with debatable assumptions as shown in Sect. 4.5. To disentangle the

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intriguing relationship between compromise and publicity, we have explored the contradictory evaluations of compromise conceived as a political principle. This has led us to identify a paradox: Even when compromise is praised and publicly acknowledged as a legitimate political principle, compromise-building seems to require private settings that may be considered illegitimate. In order to clarify this paradox, we have inventoried five possibly negative effects of publicity on the decisionmakers’ ability to compromise: posturing, pandering, messaging, superficial and accelerated debates, and finally an exacerbation of passions (as opposed to reason). In addition, the publicity of debates has an impact on the external parties, which can be detrimental to compromising since publicity empowers pressure groups and increases the polarization of citizens. The latter effect tends to reinforce the decision-makers’ tendency to inflexibility and pandering, which generates a vicious cycle. However, given that these effects are invoked to justify the secrecy of debates, we have also explored their strengths. Even if these effects are documented and widespread, we have shown that they are context-­ dependent, and that compromise is not necessarily incompatible with publicity. In particular, we have argued that decision-makers’ tendency to inflexibility should be understood as part of a broader mechanism. Actually, decision-makers behave in accordance with what they perceive as their constituents’ expectations (Pruitt et al. 1986). For this reason, in cases they believe that their constituents are inclined to conciliation, they will tend to make concessions. This psychological mechanism has important consequences: In democratic patterns in which consensus and compromises are valued, representatives might be keen on granting public concessions to the other parties. The fact that the opposite behaviour is more widespread and encouraged by increased polarization does not mean that publicity and compromise are necessarily incompatible. In addition, sociological studies (Desage 2009; Gilbert and Henry 2012) have shown that secret settings can be used to build compromises that aim to avoid conflicts between peers (for instance, mayors of different cities) rather than to conciliate the divergent citizens’ preferences. For this reason, and given the fundamental role of publicity to guarantee accountability the oft-invoked incompatibility between compromise and publicity should not be taken for granted and serve as an unquestionable

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justification of secret debates (see also Novak and Hillebrandt 2020). However, beyond these normative considerations, we conclude that the fact that compromise is associated with opacity and a lack of accountability contributes to the uneasy relation between compromise and democracy.

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5 Agonistic Compromise Manon Westphal

5.1 Introduction Agonistic democracy is not the most obvious political theory to be made the basis of a discussion of the relationship between compromise and democracy. Agonists emphasise the importance of disagreement and conflict for democracy and criticise other political theories, most notably deliberative democracy and political liberalism, for over-emphasising the role of consensus in politics (e.g., Mouffe 2000, 2005). Agonists assume that if there is too little confrontation and too much the appearance of an agreed state of affairs in politics, this eventually enables anti-democratic forces to occupy the role of “the only real alternative” to the status quo (Mouffe 2005: 68). Such considerations have made agonists take a critical stance not only on consensus models of politics but also on political compromise.

M. Westphal (*) University of Münster, Münster, Germany e-mail: [email protected] © The Author(s) 2020 S. Baume, S. Novak (eds.), Compromises in Democracy, Palgrave Studies in Compromise after Conflict, https://doi.org/10.1007/978-3-030-40802-2_5

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[I]t is only when we acknowledge ‘the political’ in its antagonistic dimension that we can pose the central question for democratic politics. This question, pace liberal theorists, is not how to negotiate a compromise among competing interests, nor is it how to reach a ‘rational’, i.e. fully inclusive, consensus without any exclusion. (Mouffe 2013: 9, second italics mine)

This chapter argues that agonists should take a more nuanced view of the potential political uses of compromise than most of them have so far. My claim is that there is a place for compromise in agonistic democracy because compromise is sometimes needed to realise the objectives of agonistic politics. To defend this claim I will outline the model of agonistic compromise. Agonistic compromises have three constitutive features: they are strategic, they are emancipatory, and they are temporary. The roles which compromises of this sort can play in agonistic politics show that the arguments which agonists typically raise against compromise do not amount to a principled case against compromise. The most detailed agonistic critique of political compromise has been developed by Amanda Machin and Alexander Ruser (2017). Machin and Ruser are critical of the increasing attention that compromise has been receiving in political theory.1 In their view, political compromise tends to undermine democratic equality and to disguise differences and plurality. As far as democratic equality is concerned, Machin and Ruser argue that in cases where the equal status of groups of society is at stake—the historical example they discuss is the conflict over women’s suffrage— political compromise generates outcomes that are problematic from a democratic point of view. Women were simply unable to negotiate on equal terms; it was this very inequality, of course, that they were challenging. The compromises regarding women’s suffrage can be seen as a ‘step in the right direction’, but they can also be seen as reaffirming the very inequality that was in question. Compromise on equality does indeed compromise equality. (Machin and Ruser 2017: 15)

 For an overview of approaches to compromise in contemporary political theory, see Rostbøll and Scavenius (2018). 1

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Even where political conflicts are not about fundamental questions of equal status, the contexts of these conflicts are usually shaped by inequalities that are likely to be reflected by compromises that are built in those contexts. “[I]f social capital underpins compromise, and if social capital is unevenly distributed, then this suggests that the context of a compromise negotiation may be unequal in a way that is not acknowledged by the formal affirmation of a principle of equality” (Machin and Ruser 2017: 24). As far as difference and plurality are concerned, Machin and Ruser present an argument that reflects the agonistic critique of the ideal of consensus in deliberative democracy (e.g., Mouffe 2000: chapter 4). They explicitly read the increased interest of political theorists in compromise as a development within the paradigm of deliberative democracy (Machin and Ruser 2017: 35–36) and confront this development with arguments that are reminiscent of Mouffe’s objections to Habermas’s and Rawls’s theories: compromises “inevitably exclude certain positions” and tend to “suture political debate” through mitigating political differences instead of bringing them to the fore (Machin and Ruser 2017: 38). Because a lively democracy depends on the confrontation among political alternatives, compromise may eventually undermine important requirements of democracy. There is a danger that compromise emaciates the plurality of the political realm, not just by omitting certain parties, but by ‘covering over’ that omission and then ‘watering down’ the positions that are included. The damage may not just be limited to the loss of legitimacy by political parties who have ‘compromised themselves’. The result may be a broader and more entrenched disillusionment with the entire democratic system. (Machin and Ruser 2017: 44)

On the one hand, it may seem natural for agonists to support a critical view of compromise as it is set out by Machin and Ruser. Like consensus, compromise is a cooperative mode of politics rather than a disruptive one. Compromisers make concessions to each other to enable political cooperation (Wendt 2013: 577; Willems 2016: 248–249). Thus, they bridge their differences rather than polarise them. On the other hand, the

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agonistic critique of compromise seems to assume an analogy between consensus and compromise that does not recognise an important difference between consensus and compromise: while parties who find a consensus agree on a matter of previous disagreement, compromisers do not overcome their disagreement (Weinstock 2017: 638–639). The give-and-­ take of concessions that is the essence of compromise only makes sense against the background of disagreement. If parties were not holding different views on the issue in question, they would not have to engage in mutual concession-making—they would simply agree on the subject at hand. To the extent that it assumes that the disagreement among opponents persists throughout their dealing with the matter at stake, compromise is closer to the premises of agonistic democracy than it is to those of deliberative democracy. Deliberative democrats usually assume that “public deliberation, by virtue of tracking the force of the better argument […], can intrinsically contribute to bringing about the free assent of all participants in the democratic process, even in cases of substantive disagreement” (Lafont 2006: 18). I take this observation to invite a critical interrogation of agonists’ sceptical view of compromise. Even if it does not by itself undermine agonists’ concerns about the political effects of compromise—despite the fact that they continue to disagree, compromisers to a certain extent depoliticise their disagreement when they settle on some political arrangement—it at least shows that compromise does not contradict the central agonistic premises about the depth and persistence of disagreement. To be sure, Machin and Ruser “do not assert that there is no place for political compromise” (Machin and Ruser 2017: 9). They do not argue that politics should avoid compromise at all times. However, I understand their case against compromise to be a principled one: the central ideas of agonistic democracy imply a critical view of compromise even if, because of certain political necessities, compromise may sometimes be inevitable. I argue that it is important for agonists to go beyond this assessment. Compromise cannot be the exclusive political ideal for agonistic democracy, but under certain conditions agonism may be furthered

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by compromise, and sometimes agonism even requires compromise. It seems worthwhile to develop this claim and outline the model of agonistic compromise for at least three reasons. First, such an undertaking contributes to an exploration of the richness of agonistic theory. Agonistic democracy is not merely a call for disagreement and conflict, because it offers distinctive views on how political conflicts should be dealt with (Westphal 2018a, 2019). Sometimes an agonistic processing of conflicts requires the building of compromises. Second, by specifying the place of compromise in agonistic democracy, political theorists can contribute to a discussion of the relationship between democracy and compromise more generally. If even a democratic theory that is especially aware of the importance of confrontation and conflict in politics cannot dispense with compromise altogether, this may indicate a constitutive role of compromise in democratic politics. Third, the model of agonistic compromise can contribute to the recent debate on political compromise, which has for the most part focused on two topics, namely reasons to compromise (e.g., May 2005; Rostbøll 2017; Weinstock 2013; Wendt 2016) and qualities of compromise (e.g., Bellamy and Hollis 1998; Jones and O’Flynn 2012; May 2013; Wendt 2016). The model of agonistic compromise can provide distinctive impulses to the debates on these topics. The structure of the chapter is as follows. First, I address the theory of Chantal Mouffe, who belongs to those agonists who are most sceptical of political compromise, and show that even this version of agonism has a reason to embrace political compromise. Second, I refer to James Tully’s version of agonism to demonstrate that agonistic assessments of the uses of political compromise are diverse. While in Mouffe’s case compromise can be defended as an important strategy for political actors to gain the power that they need to make themselves heard in political conflict, in Tully’s case compromise is also an adequate response to conflict. Third, I argue that these two different political functions of compromise can be read as realisations of agonistic compromise. Fourth, I discuss how the model of agonistic compromise can contribute to the current debate on political compromise.

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5.2 A  gonism and Compromises Among Political Allies To show that agonism even in its most confrontational form requires compromise, I will deal with the theory of Chantal Mouffe who is strongly critical of political compromise. In a nutshell, I argue that Mouffe neglects how the building of a new political hegemony, which she considers to be the central task for actors of agonistic politics, depends on compromises among a plurality of actors with different views and political goals. Like all agonists, Mouffe grounds her political theory on the understanding that politics takes place under conditions of pluralism and disagreement. These conditions are constitutive of the social and not limited to a specific realm of social relationships (Wenman 2013: 28; Wingenbach 2011: 22). However, what characterises Mouffe’s theory as a distinctive version of agonism is that it assumes that conflicts can only be resolved through a political victory by one of the involved opponents over the other(s). The natural mode of democratic politics, for Mouffe, is a struggle for hegemony. There are limits to the means that are allowed in such a struggle: political competitors must acknowledge each other’s rights to fight for the positions they hold and they must not violently hinder each other from participating in politics (Mouffe 2000: 102, 2013: 7). However, competitors do not owe each other more than that. As long as they use political means and refrain from the use of violence, political actors are free to push their own concerns and political projects forward and do their best to hinder the realisation of competing concerns and political projects. Mouffe does not understand this form of politics to be a direct implication of the pluralistic nature of the social. To be sure, there is a connection between the pluralistic nature of the social and the hegemonic model of politics in the sense that the hegemonic model recognises the deeply conflictual nature of social relationships. However, politics does not necessarily take the shape of an agonistic struggle for hegemony. In On the Political (2005) Mouffe describes long phases of grand coalitions in various European countries as times where consensual forms of politics,

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rather than agonistic ones, are hegemonic. In such phases, established democratic parties tend to agree on political questions rather than fight for substantially different political projects. Mouffe argues that such phases of low political contestation are detrimental to democracy. This view is most explicit in her explanation of the rise of right-wing populism in Western Europe. Because the unity among collaborating coalition partners makes it easy for populists to present themselves as “the only real alternative” to the status quo, it is the established political parties’ contribution to a consensual form of politics which paves the way for a success of right-wing populism (Mouffe 2005: 66–76). Therefore, the continued existence of a functioning pluralist democracy depends on a confrontation among democratic forces. Politics should be confrontational because otherwise the antagonistic nature of the social finds other, potentially non-democratic channels. This consideration can  explain why the fact that a compromise, by contrast with a consensus, does not require parties to take the same view on the matter at stake is no reason for Mouffe to see compromise as a worthwhile political model. Like parties who find a consensus, compromisers agree on a certain course of action. The fact that neither of the parties considers that course of action to be the ideal one, because they continue to disagree what the right course of action is, is rendered invisible by the agreement on the policy which settles the dispute in question. From Mouffe’s perspective, it does not make a difference, politically speaking, whether parties find a consensus or create a compromise. In both cases, parties come to a political agreement which, at least if it lasts too long, undermines the contestatory mode of politics that is the essence of a pluralist democracy. However, to show that there is nevertheless an important role for compromise in Mouffe’s model of agonistic politics, we have to shift the perspective away from the interaction among political opponents to the internal activities of those groups that initiate political confrontations. Like other agonists, Mouffe sees hegemonic politics to be inherently emancipatory. Successful hegemonic politics takes place where previously marginalised groups of society challenge the status quo of a polity and create a counter-power that is capable of enforcing political change. The central task for political actors thus is to build a strong political force

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from an initial situation of marginalisation. It is this process that I want to zoom in on. The building of a new political counter-power requires that many actors gather to build one larger collective identity. This collective identity, according to Mouffe, has the shape of a chain of equivalence. A chain of equivalence—a term that is central to the discourse theory which Mouffe has developed with Ernesto Laclau (2001)—is a political alliance that is forged through a shared rejection of a political opponent. What unites the parts of the ‘chain’ is nothing but the opposition towards that aspect of the status quo which they jointly aim to overcome. Examples that illustrate what Mouffe has in mind here are, for instance, the workers’ movement and new social movements like the feminist, the environmental, or the LGBT movement. Each of these political movements is united by a shared understanding that the rules that currently shape social relationships are unjust and require change and political renewal. It is by focusing on the need to abandon the status quo that political movements are able to absorb, politically speaking, the differences among their parts. Secular and religious groups, progressive and conservative groups, churches, non-governmental organisations (NGOs), trade unions, and protest groups are able to unite because the collective identity that they build, if they become parts of a chain of equivalence, relies only on the rejection of what all of them consider unjust. In view of the agonistic premises about the ubiquity and the persistence of disagreement, it is obvious why this appears to be an effective political strategy for the building of a hegemonic counter-power. A collective identity that consists merely of what actors jointly oppose can exist alongside their continued disagreement about what a just social order would look like. Given that (a) those who are marginalised by the status quo are usually smaller and less powerful groups that need political partners to gain political influence and (b) disagreement characterises the relationships also among potential political allies, seeking unification through a creation of chains of equivalence is a plausible political tactic for political actors to overcome their marginalised status. Mouffe could argue that this description supports her case against political compromise. If the opposition to the status quo is crucial for the building of a new political hegemony, it seems important not to dilute

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this opposition by compromising with the established political actors. However, this leaves unanswered how the political actors who articulate a confrontational chain of equivalence can implement new political rules and new forms of social relationships if they win the struggle for hegemony. In Hegemony and Socialist Strategy, Laclau and Mouffe stress that effective political change not only requires political confrontation but also the construction of a new political project (Laclau and Mouffe 2001: 189). There must be a powerful challenge to the existing hegemony first, but in order for a new political hegemony to be established, confrontation must be supplemented by the articulation of a political agenda that can be implemented when the political struggle has been decided in favour of the critical actors. This agenda, however, must have some positive content. While the creation of a collective identity through a shared criticism of the status quo does not require a positive understanding of where the political struggle should lead, the implementation of new rules requires such a positive understanding. What is needed are alternatives to the challenged rules, for example new tax laws, innovative public education policies, rules for the financing of political campaigns, and so on. The problem is that such policies must be identified against the same background that also defines the context of counter-hegemonic coalition building, that is conditions of pluralism and disagreement among those who unite to build a collective political identity. At this point, however, the internal differences cannot be absorbed as it happens in the articulation of a criticism of the status quo. Those who belong to the collective political identity must deal with their differences in a way that enables them to identify a political course of action that at least a significant part of them can support. Mouffe does not explain how this task can be met. I propose that it is when agonists aim to fill this gap in her argument that political compromise presents itself as a plausible model to play this role. If the agonistic premise about the persistence of disagreement guides considerations on how a positive political agenda can be created from a situation of disagreement among political allies, compromise is a viable option. The allies can negotiate and combine concessions to the views that are involved and thereby create a political agenda that gives all, or at least most of

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those who belong to the counter-hegemonic alliance, reasons to support that agenda. Such a compromise among actors who aim to establish a new hegemony does not undermine agonistic politics but, on the contrary, makes it possible. If those who jointly criticise the status quo were unable to settle on a course of action, they would simply be unable to act collectively once their challenge to the status quo was successful and opportunities for political change open up. Thus, there is an important place for compromise in agonistic democracy: compromise is a practical necessity for political actors to translate the hegemonic power, which they have gained through their unification under the umbrella of a shared criticism, into effective political change.

5.3 A  gonism and Compromises Among Political Opponents In this section, I defend my second claim, namely that political compromise can also play a positive role in agonism as a response to political conflict. One version of agonism that can be read as making a case for this claim is that of James Tully. By contrast with Mouffe, Tully describes agonistic politics as a dialogical process. He argues that political opponents should not only accept each other’s right to participate in political struggles, but also engage in dialogues where all parties present and explain their views and, according to the principle of audi alteram partem, listen to the presentations of other views (Tully 2000: 475, 2004: 99). The goal of such interchanges, according to Tully, is the achievement of a mutual understanding that enables opponents to find a solution to the dispute in question that is acceptable to all those concerned (Tully 2004: 99). However, this does not mean that Tully advances a theory of deliberative democracy in the Habermasian vein. Tully’s model of dialogue does not assume rationalising effects of the process of argumentation. Participants do not test the quality of each other’s arguments according to generalisable standards. They attempt to understand as best as possible why their opponents hold the views that make them fight for their respective political demands  and they are willing to negotiate

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political agreements with their opponents. Tully stresses that the agreements that are reached through dialogue will always be of an agonistic nature, which means that the disagreements about the matter of dispute are not overcome (Tully 2002: 218). The apparent contradiction between these two components of his theory—the definition of agreement as the objective of political dialogue (which suggests a proximity to deliberative democracy) and the assumption of persisting disagreement (which is a fundamental premise of agonistic democracy)—can be resolved if the sort of agreement that participants of the dialogue seek is a compromise (Westphal 2018b). Opponents do not overcome their disagreement on the matter at stake, and possibly they do not even reduce it, but they build an arrangement that contains concessions to each of the views involved. Tully’s political model thus represents a cooperative version of agonistic politics whereas Mouffe’s model represents an explicitly confrontational one. A proponent of Mouffe’s confrontational view of agonism might object that Tully’s compromise-oriented agonistic dialogue, even if it does not assume that opponents overcome their disagreement, is nevertheless detrimental to pluralism and the articulation of clear political alternatives (see Machin and Ruser’s argument). From such a perspective, it could be concluded that agonists should recognise the positive role that compromise can play in the creation of counter-hegemonic political alliances, but reject the idea that compromise is also a useful mode of conflict processing. I think that such an argument neglects what it means to read the agonistic ideal of political emancipation against the background of the diversity of conflicts and conflict constellations that characterise pluralist democracies. The idea that the democratic nature of politics consists in its enabling political emancipation is not only central to Mouffe’s and Tully’s theories but also to those of other agonists like Bonnie Honig and William Connolly and can therefore be called a more general normative commitment of agonism (Fossen 2008: 377). What renders agonistic politics democratic is that it regularly enables those who have been excluded or marginalised by existing rules to challenge the status quo and realise political change. Since agonists understand pluralism and disagreement to be constitutive features of the social, they assume that it is not rational

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reason-giving and a shared understanding of political objectives that bring about such political change. Rather than the quality of their arguments, it is the struggle of those who are marginalised by the status quo and the power of their counter-hegemonic alliances which enable the implementation of new rules. Under such conditions, a model of agonistic politics that rejects compromise as a mode of conflict processing must assume the prevalence of a specific type of political conflict to be able to assume realistic prospects for emancipatory politics, namely conflicts where the counter-hegemonic actors are in fact capable of building alliances that are powerful enough to decide the political struggle for hegemony in their favour. However, not all groups that are potential agents of emancipatory politics are able to build a counter-hegemony with that kind of power, or at least may not be able to build such a counter-hegemony in the near-term. Consider, for instance, smaller cultural or religious groups whose political concerns are not easily made objectives of larger political movements. Collective identities that consist of chains of equivalence are compatible with pluralism and disagreement because they are forged through shared oppositions and remain internally plural. However, the mere fact that building a political alliance with minority groups does not require other groups to adopt the views of those groups does not mean that they feel motivated to build a political alliance with them. For one thing, a precondition of such motivation is that actors share a critical view of those elements of the status quo that are challenged by the minority group in question. The differences among potential allies can only be ‘absorbed’ if the relevant actors share the goal of overcoming the status quo. In addition, as I argued in the previous section, for a new political project to be implemented, the actors that are part of the counter-hegemonic alliance must be willing to cooperate and negotiate a political agenda that contains concessions to each of the views involved. In the light of their understanding of the social as inherently pluralist and conflictual, agonists should suspect that neither a shared understanding of the requirements of political change nor the willingness to engage in concession-making for the sake of joint political action can be taken for granted. Not all groups of society that are dissatisfied with the status quo

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because they see their identities and concerns misrecognised can count on others to share their criticism and seek joint political action with them. It seems that agonists could not easily take the view that the political irrelevance of critical voices which are incapable of building political alliances that are strong enough to assert a new political project against the existing hegemony means no loss for the democratic nature of politics. If the fundamental normative idea of agonism is the ideal of political emancipation—the idea that politics should continuously offer marginalised groups possibilities to challenge the status quo—then cases where marginalised groups remain incapable of acting according to that ideal are problematic from the agonistic point of view. To be sure, there are limits to how agonists can respond to such cases. Because they reject the notion of a generalisable point of view, agonists cannot, for instance, argue that actors have a moral duty to act in favour of the views of others who unjustly find themselves disadvantaged by the status quo. In agonism, the achievement of political change requires political action on the part of those who are unwilling to accept the status quo. Such political action must somehow force the established political actors to address the emancipatory concerns even in the absence of a moral insight into the rightfulness to do so. In this sense, agonistic democracy has an important ‘blind spot’. Injustices that are not articulated and made the basis of demands for political change remain invisible. But this is not the sort of case that I have in mind here. What I have in mind are cases where groups of society are politically active, articulate a criticism of the status quo and present demands for political change without, however, being capable of making (enough) other groups join their action to push their projects forward. Such groups realise the sort of political activity that agonists view desirable but remain politically incapable because of the lack of political support. I submit that in such cases their commitment to emancipatory politics is an important reason for agonists to endorse Tully’s version of agonistic politics and consider that political compromise among opponents can bring politics at least closer to the agonistic ideal. If a political conflict that is initiated by critics of the status quo is dealt with through compromise, this means that the existing rules are modified in ways that somehow accommodate the concerns of the previously marginalised political

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actors. Even if this does not result in the most radical form of political change, it means a positive development in comparison to what seems to be the most likely alternative under conditions of large power asymmetries between the opponents, namely the absence of any change happening at all. Mouffian agonists could raise two objections against this argument. First, it neglects the modifiability of power relationships. Groups that are the minorities of today do not have to remain in that situation, and agonists should focus on possibilities to fundamentally change the existing power relationships to enable more radical forms of political action. Second, even if political compromise can achieve improvements of the situation in comparison to the status quo, a focus on compromise undermines the more radical potential of political opposition from the beginning: if critics of the status quo indicate that they do not expect more than certain concessions to their views, then fundamental political change may not even be an option. As far as the first objection is concerned, my point is that taking seriously the role of power in politics should include awareness of the fact that power relationships are often resistant and difficult to be changed radically at a given point in time. If a group that is not capable of building a new political hegemony from the conflict it has initiated but can at least urge the powerful political actors to enter a negotiation process that produces a compromise on the disputed issue, this should be seen as an instance of a genuinely agonistic form of politics in the sense that it realises the agonistic political ideal at least to a certain extent—and possibly to the maximum extent possible under conditions of the specific political constraints that are implied by the power relationships in place. This does not mean that the goal of more fundamental transformations of power relationships is abandoned. It seems realistic, however, to assume that, at least in many cases, such transformations will be long-term projects rather than immediate political achievements. As far as the second objection is concerned, it is important to stress that identifying the value of one model of agonistic politics does not mean abandoning the other. Agonists who appreciate the political achievement of compromise for reasons such as the ones that I gave do not have to neglect the potentially worthwhile political effects of a less

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cooperative political confrontation as it is described by Mouffe. For instance, one could understand the confrontational and the cooperative mode of agonistic politics as different stages in the process of agonistic conflict processing. Maybe an outright rejection of the other party’s views and the demonstration of a willingness to fight for the full realisation of one’s own views is sometimes a helpful strategy to enforce a willingness to negotiate on the other side, which may then set the ground for the building of a compromise that includes concessions to all views involved. Thus far, I have argued that it is possible, from an agonistic point of view, to appreciate political compromise not only as a means for a plurality of political actors with different views to create a mutually agreed political agenda, but also as a potential response to political conflict. These considerations enable the description of a  model of agonistic compromise.

5.4 The Model of Agonistic Compromise The finding that compromise can contribute to agonistic politics in two important senses does not only challenge the perception of agonistic democracy as a form of democratic theory that is incompatible with political compromise. In addition, it enables the definition of a specific type of political compromise which I will call agonistic compromise. In this section, I show that both instances of compromise that I outlined—the compromise that is built among political allies and the compromise that is built among political opponents—represent a more general type of compromise whose distinctive features reflect the view of politics that is characteristic of agonistic theory. In the subsequent section, I demonstrate how this model can contribute novel considerations about topics that have been at the centre of the broader debate on political compromise. Even if the two instances of compromise that I outlined realise different political functions—one enables political actors to build a counter-­ hegemonic political force and the other enables opposing parties to find a political solution to their dispute—they share three characteristics: they are strategic, they are emancipatory, and they are temporary. It is these three characteristics that are constitutive of agonistic compromise.

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Both compromises among political allies and compromises among political opponents are strategic in the sense that, in both cases, the involved actors build compromises because doing so enables them to pursue their political goals better than if they refused to compromise. Political actors who jointly challenge the status quo make compromises with each other because, in view of the differences that characterise their coalition, they would otherwise be incapable of creating a counter-hegemonic political project which all of them can support. Political opponents build compromises because, from the point of view of those who challenge the status quo, it is a possibility to realise at least some of their concerns. From the point of view of those who defend the status quo, building compromises with the political opponents is a possibility to resolve the relevant conflict without, however, sacrificing too much—the existing rules are modified but not abandoned.2 Hence, in all scenarios where agonistic politics takes the shape of compromise, political actors build compromises out of strategic concerns: given the relevant political conditions, a readiness to compromise puts them in a better position to realise their concerns than a refusal to do so. Compromises among political allies and compromises among political opponents also share an emancipatory nature. Both forms of compromise enable political activities that realise concerns of previously marginalised groups. Compromises among political allies articulate an emancipatory political project. Whatever the allies negotiate, the outcome of their negotiation is some political project that represents a potential alternative to the status quo. Compromises among political opponents—among established political actors defending the status quo and political actors demanding political change—include concessions to the demands of the previously marginalised and modify the existing rules such that they move in the direction of the emancipatory project in question, even if they do not realise that project in its entirety. Thus, although the exact content of demands for political change depends on what political actors consider relevant in their circumstances, the emancipatory nature of the  A situation where the defenders of the status quo acknowledge the need to accommodate at least some of the concerns of their opponents of course presupposes a situation where the opponents have acquired enough political power to render an uncompromising defence of the status quo unfeasible. 2

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two instances of compromise allows for a general specification of agonistic compromises in the sense that they improve the situation of those actors whose views have not had a meaningful impact on the shape of collectively binding rules before. The third characteristic of agonistic compromises is their temporary nature. To explain why this quality should be seen equally constitutive of agonistic compromise like its strategic and its emancipatory nature, it is important to address the central concern of those agonists who are sceptical of political compromise. Recall what Mouffe and Machin and Ruser warn against in their critique of a cooperative mode of politics which, either in the form of consensus politics or in the form of compromise politics, bridges differences and creates political unity instead of confronting the differences between political alternatives. So far, I have insufficiently addressed their concern that the cooperative nature of compromise may disguise political differences and disagreements. I argued that agonists should not reject compromise because agonistic politics requires compromise in cases where the actors of counter-hegemonic politics face the task of building alliances across their differences as well as in cases where counter-hegemonic alliances are incapable of gaining sufficient power to enforce their political projects. However, in order to accommodate the concern of the agonist critics of political compromise, it is important to stress that agonistic politics should not be all about compromise. My argument means to make room for compromise in agonistic politics, but it does not aim to define agonistic politics as compromise. In the previous section, I already indicated that it might be that compromise is only in place at a certain stage of the processing of political conflicts. I want to make this a more general point: just like there can be cases where compromise is the most suitable mode of agonistic politics, there can also be cases where compromise will be of little help and possibly even detrimental to the objectives of agonistic politics. For instance, if those who challenge the status quo see themselves capable of building a political alliance that is strong enough to become hegemonic, they might prefer to endure political confrontation rather than make ‘common cause’ with their opponents. The existence of such uncompromising action on the part of emancipatory political actors can indeed make an important contribution to the functioning of an agonistic democracy

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and should therefore have a place in politics alongside practices of compromise, which should happen in situations where compromise, not confrontation, is best suited to realise (at least some of ) the concerns of the previously marginalised groups. In this sense, the concern about depoliticising effects of compromise demands a limitation of the role of compromise in agonistic politics. Not only are merely those compromises supportive of agonism that serve strategic considerations of political actors and contain concessions to the demands of emancipatory political projects. Such compromises are also only one possibility to serve the strategic considerations of political actors and to realise demands of emancipatory political projects. In an agonistic democracy, it is important that other possibilities of realising these purposes, that is through confrontation and a refusal to cooperate, are also available. While some sorts of conflict might be better dealt with through compromise, others might be better dealt with through confrontation and uncompromising political action. While some phases of conflict processing might be better dominated by confrontation and uncompromising political action, other phases might be better oriented towards compromise. This consideration about a need to have a mix of modes of agonistic conflict processing can mitigate the concern of agonists about depoliticising effects of compromise. Agonistic compromise supplements rather than replaces confrontational political modes. However, a response to the concern about depoliticising effects of compromise also requires a further specification of the nature of agonistic compromise. Agonistic compromises are not only strategic and emancipatory, they are also temporary. Agonistic compromises are in place only for a limited amount of time and should then be modified or abandoned. This is the most direct way to accommodate the concern that compromises can disguise differences and disagreements. After a certain amount of time, the political unification that has been created by a compromise should terminate in order to enable a new political process that might generate a different solution to the matter in question. Independent of whether such a process again takes the shape of a compromise or transforms into a confrontational struggle for hegemony, the political achievement of such a renewed process is that it brings to the fore once again the disagreement among the former compromisers (and possibly also among

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additional political actors that have not been party to the previous compromise). In this sense, the temporary nature of agonistic compromises ensures that political practice does not ‘forget’ the disagreement and the potential of conflict that make up the permanent circumstances of politics. To illustrate that the model of agonistic compromise so described reflects the critical impetus of agonistic theorising, I come back to Mouffe’s critique of consensus forms of politics. Recall that Mouffe reads the rise of right-wing populism as a response to depoliticised situations such as long phases of grand coalitions where there is little dispute about substantial political alternatives. The model of agonistic compromise supports Mouffe’s critical assessment of such scenarios. Even if the motivations of political parties to build grand coalitions and refrain from demanding fundamental political change may be largely strategic, the commitment of agonistic compromise to political emancipation implies a critical view of the fact that the range of actors who make compromises to build grand coalitions consists only of established political parties. Such compromises are no instances of the first sort of agonistic compromise, that is compromises built among actors that forge political alliances against the status quo. It is the already established political actors that build coalitions in such cases. Also, it is questionable if grand coalitions can be read as instances of the second sort of agonistic compromise. The partners of grand coalitions make compromises with each other to enable a government which none of the parties is capable of building on its own. Such a process, however, does not necessarily include concessions to the demands of marginalised political actors who are not needed for the coalition building in the first place. The long-lasting existence of the grand coalitions that Mouffe describes is another reason why the compromises of such coalitions cannot be read as instances of agonistic compromise. As I stressed above, the temporary nature of agonistic compromise requires regular breaks with negotiated arrangements. Long phases of grand coalitions, however, seem to be attempts of the established political parties to protect their privileged political positions rather than expressions of an agonistic compromise which, in one way or another, works against such a strategy of the established political actors. For these reasons, agonistic democracy can incorporate the model of agonistic compromise without thereby losing its critical stance.

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5.5 Contributions to the Debate on Political Compromise So far, my argument is mainly a contribution to agonistic theory. I argued that agonists should be less critical of political compromise than at least many of them are, demonstrated where compromise has a place in agonistic politics and outlined the model of agonistic compromise. In this final part of the chapter, I want to show how these considerations relate to the current debate on political compromise. I focus on two topics that have been at the focus of the debate, namely reasons to compromise and desirable qualities of compromise arrangements. As regards the reasons that may motivate parties to compromise with others, theorists of compromise are divided on the question whether there are only pragmatic reasons to compromise or whether there are also principled reasons to compromise. For instance, Simon May (2005) has challenged the notion of a “principled compromise” and argues that parties who have fundamentally different moral views on matters can only be expected to have pragmatic reasons to compromise. By contrast, Daniel Weinstock (2013, 2017) and Christian Rostbøll (2017, 2018) have defended the idea that there are principled reasons to compromise. Compromise is seen as a genuinely democratic response to disagreement because it enables dissenters to participate in deliberations that realise the value of reciprocity (Weinstock 2017). Mutual concession-making means that compromisers show “respect for fellow citizens as co-rulers” (Rostbøll 2017: 628). How does the model of agonistic compromise contribute to this debate? First of all, the strategic nature of agonistic compromise supports the view that political actors are likely to compromise with others if they have pragmatic reasons to do so. Actors who aim to overcome the status quo compromise with others in order to gain sufficient political strength to realise (at least some of ) their political concerns—they do not recognise a moral duty to do so. Established political actors compromise with the critics of the status quo if the power relationships have changed such that it is not feasible for them to simply fend off the political demands of their opponents. In this sense, the agonistic view of compromise seems to support the pragmatic-reasons-only side in the debate.

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However, the emancipatory nature of agonistic compromise shows that an agonistic assessment of the matter must be more complex. If the reason why agonists should be aware of the potential uses of political compromise is that under certain circumstances compromise is an effective means to accommodate (some of ) the concerns of previously marginalised groups, the agonistic case for compromise clearly presupposes a normative consideration. A description of the agonistic stance as assuming only pragmatic reasons to compromise therefore neglects that there exists a principled reason for agonists to view agonistic compromise as a worthwhile political achievement, namely the value of political emancipation. One could conclude then that, from the agonistic point of view, both sorts of reasons for compromise are important, pragmatic and principled ones. But it would be problematic for agonists to take the view that political actors should feel motivated to compromise because they consider emancipation an important political value and therefore make concessions to those who claim to have been excluded or marginalised by the existing rules. This would introduce a moral notion of political action to the argument that contradicts fundamental premises of agonistic theory. The agonistic critique of consensus views of politics is closely related to the understanding that political theorists should be aware of the constitutive role of power in politics. Conflicts result from competing claims to political power and it is the task of the political process to tame these conflicts because morality cannot solve them. How can this consideration about a non-moral, power-based orientation to political action, on the one hand, and the understanding of the central role of the value of political emancipation, on the other, be reconciled? I suggest that it is possible to reconcile the two with the help of a distinction between the first-person perspective and the third-person perspective. From the first-person perspective, which is the perspective of political actors who are involved in political conflicts, it is only strategic and thus pragmatic reasons that motivate their readiness to compromise with others. However, from a third-person perspective, which is the external perspective of someone who observes the conflicts that emerge when incompatible claims for hegemony are articulated—in this case: the agonistic theorist—it is a good thing that political actors have pragmatic reasons to compromise, because under such conditions it is more likely that

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political changes that realise political emancipation come about. Therefore, the agonistic stance has a distinctive proposal to contribute to the debate on reasons to compromise. It implies that the question whether there are only pragmatic or also principled reasons to compromise should be addressed with a specific focus on who is concerned. While it may not be possible to expect more of those who are involved in political conflicts than that they agree to compromise on grounds of pragmatic reasons, this does not mean that other political actors or political theorists could not have principled reasons to value compromise as a political achievement and therefore, for instance, support the building of compromises among parties, or think of political conditions that can further the pragmatic willingness of conflict parties to compromise. The second topic of the debate on compromise that I want to address is desirable qualities of compromise. One central question in this respect is to what extent compromises can and should be fair. Fabian Wendt argues that to specify the meaning of fair compromises one should distinguish between “the fairness of the process of bargaining (if there is such a process) and the fairness of the outcome, that is, of the arrangement the parties agree to in the end” (Wendt 2016: 58). Wendt proposes Gauthier’s “principle of minimax relative concession” (Wendt 2016: 58) as a criterion of fairness in the outcome dimension. A bargaining procedure, however, “may be judged fair because it tends to lead to a fair arrangement, or it may be judged fair independently, without regard to its tendency to produce certain outcomes” (Wendt 2016: 59). Regarding the question if fair compromises are desirable, Wendt has  developed a critical view according to which “it is never a moral desideratum to reach fair compromises” (Wendt 2019: 2856). Peter Jones and Ian O’Flynn ask if it is possible for theorists who value compromise because it speaks to the “non-ideal” circumstances of politics such as disagreement and conflict to commit themselves to the ideal of fair compromise. It might seem more plausible to assume “that a compromise entitles the parties to agree to any of a range of possible outcomes rather than only to an outcome that is fair” (Jones and O’Flynn 2012: 132). Thus, there are not only different possibilities to define the fairness of compromise arrangements, there also exists some scepticism about the plausibility of the ideal of fair compromise.

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How does the agonistic view contribute to this debate? Depending on the perspective one takes, the model of agonistic compromise suggests either to abandon fairness as a desirable quality of political compromise or to advance a specific interpretation of fair compromise. If it is assumed that fairness means an equal consideration of views in the compromise arrangement, fairness is to be abandoned as a goal of agonistic compromise. What counts from the agonistic point of view—this is implied by the emancipatory nature of agonistic compromise—is that the concerns of those actors who have been excluded or marginalised by the status quo are accommodated. For political parties who forge political alliances with the purpose of achieving political change, this means that strategic considerations about political tactics which seem best suited to achieve such accommodation are more important than the pursuance of a fair balancing of the views of all involved parties. As far as conflicts between established political actors and previously marginalised political actors are concerned, the emancipatory nature of agonistic compromise implies that a greater consideration of the concerns of the marginalised in a compromise arrangement is considered to be better than a ‘merely’ fair compromise that equally does justice to the concerns of the established actors. However, if we change perspective and consider not a single compromise arrangement but the context of political conflict and political decision-­making more broadly, it is possible to argue that the agonistic stance implies an argument in favour of fairness. If the initial situation from which a conflict emerges is interpreted as a condition of unfairness (because the concerns of some have not been accommodated), an agonistic compromise, even if it does not contain a fair balancing of the relevant views, can represent a fair political arrangement: to the extent that a compromise arrangement accommodates more of the concerns of those groups who have been marginalised by the status quo than of the concerns of the established political actors, an arrangement that is unfairly balanced in terms of content can be said to be fair in the sense that it outweighs the unfairness of the previous political situation. In that sense, depending on whether one considers the individual compromise arrangement or the broader political context where compromise arrangements are negotiated, the agonistic stance suggests either to prioritise other qualities than fairness in the assessment of a compromise, i.e. capacities

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of the compromise arrangement to realise as much as possible of the concerns of the previously marginalised, or to measure the fairness of a compromise arrangement according to how well it functions to overcome previous situations of marginalisation. These considerations demonstrate that the model of agonistic compromise implies distinctive views on issues that are currently discussed in the debate on political compromise. Whether or not one considers the respective considerations worthwhile for the theorising of compromise depends on the extent to which one sympathises with the agonistic view of democracy. On the one hand, this seems to limit the scope of the argument that I developed in this chapter. On the other hand, it indicates how the debate on political compromise could diversify and connect more closely to other debates in political theory. If different strands of political theory like, for instance, theories of liberal, deliberative, and radical democracy elaborated in more detail what their distinctive views of politics imply regarding definitions of the nature and the political role of compromise, such a debate could improve understanding of the possible variety of political compromise and enable assessments of whether compromise is a political model that cuts across the differences among families of political theories. It seems that a more general assessment of the relationship between compromise and democracy would have to take this diversity of theoretical perspectives into account.3

Bibliography Bellamy, R., & Hollis, M. (1998). Consensus, Neutrality and Compromise. Critical Review of International Social and Political Philosophy, 1(3), 54–78. Fossen, T. (2008). Agonistic Critiques of Liberalism: Perfection and Emancipation. Contemporary Political Theory, 7(4), 376–394.  I thank all participants of the workshop “How Do Compromise and Democracy Get Along?” (26–27 April 2018, University of Lausanne) and all participants of the panel “Compromise and Democracy: How They Get Along” at the 2018 ECPR General Conference in Hamburg for discussions of earlier drafts of this chapter. I especially thank Véronique Zanetti for her commentary at the workshop in Lausanne, Dominik Gerber for his commentary at the ECPR in Hamburg, and Sandrine Baume and Stéphanie Novak for their helpful written comments. 3

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Jones, P., & O’Flynn, I. (2012). Can a Compromise Be Fair? Politics, Philosophy & Economics, 12(2), 115–135. Laclau, E., & Mouffe, C. (2001). Hegemony and Socialist Strategy: Towards a Radical Democratic Politics. London/New York: Verso. Lafont, C. (2006). Is the Ideal of Deliberative Democracy Coherent? In S.  Besson & J.  L. Martí (Eds.), Deliberative Democracy and Its Discontents (pp. 3–25). Aldershot: Ashgate. Machin, A., & Ruser, A. (2017). Against Political Compromise. Sustaining Democratic Debate. Abingdon/New York: Routledge. May, S.  C. (2005). Principled Compromise and the Abortion Controversy. Philosophy & Public Affairs, 33(4), 317–348. May, S.  C. (2013). Compromise. In H.  LaFollette (Ed.), The International Encyclopedia of Ethics (pp. 959–968). Malden/Oxford: Blackwell Publishing. Mouffe, C. (2000). The Democratic Paradox. London/New York: Verso. Mouffe, C. (2005). On the Political. Abingdon/New York: Routledge. Mouffe, C. (2013). Agonistics. Thinking the World Politically. London/New York: Verso. Rostbøll, C. (2017). Democratic Respect and Compromise. Critical Review of International Social and Political Philosophy, 20(5), 619–635. Rostbøll, C. (2018). Compromise and Toleration. Responding to Disagreement. In C.  Rostbøll & T.  Scavenius (Eds.), Compromise and Disagreement in Contemporary Political Theory (pp. 17–33). Abingdon/New York: Routledge. Rostbøll, C., & Scavenius, T. (2018). Introduction. Compromise and Disagreement. In C.  Rostbøll & T.  Scavenius (Eds.), Compromise and Disagreement in Contemporary Political Theory (pp.  1–14). Abingdon/New York: Routledge. Tully, J. (2000). Struggles Over Recognition and Distribution. Constellations, 7(4), 469–482. Tully, J. (2002). The Unfreedom of the Moderns in Comparison to Their Ideals of Constitutional Democracy. The Modern Law Review Limited, 65(2), 204–228. Tully, J. (2004). Recognition and Dialogue: The Emergence of a New Field. Critical Review of International Social and Political Philosophy, 7(3), 84–106. Weinstock, D. (2013). On the Possibility of Principled Moral Compromise. Critical Review of International Social and Political Philosophy, 16(4), 537–556. Weinstock, D. (2017). Compromise, Pluralism, and Deliberation. Critical Review of International Social and Political Philosophy, 20(5), 636–655. Wendt, F. (2013). Peace Beyond Compromise. Critical Review of International Social and Political Philosophy, 16(4), 573–593.

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Wendt, F. (2016). Compromise, Peace and Public Justification. Political Morality Beyond Justice. London: Palgrave Macmillan. Wendt, F. (2019). In Defense of Unfair Compromises. Philosophical Studies, 176(11), 2855–2875. Wenman, M. (2013). Agonistic Democracy. Constituent Power in the Era of Globalisation. Cambridge/New York: Cambridge University Press. Westphal, M. (2018a). Die Normativität agonaler Politik. Konfliktregulierung und Institutionengestaltung in der pluralistischen Demokratie [The Normativity of Agonistic Politics. Institutional Design and Conflict Regulation in Pluralist Democracy]. Baden-Baden: Nomos. Westphal, M. (2018b). Compromise as a Normative Ideal in Pluralistic Politics. In C.  Rostbøll & T.  Scavenius (Eds.), Compromise and Disagreement in Contemporary Political Theory (pp. 79–94). Abingdon/New York: Routledge. Westphal, M. (2019). Overcoming the Institutional Deficit of Agonistic Democracy. Res Publica, 25(2), 187–210. Willems, U. (2016). Wertkonflikte als Herausforderung der Demokratie [Value Conflicts as a Challenge to Democracy]. Wiesbaden: Springer VS. Wingenbach, E. (2011). Institutionalizing Agonistic Democracy. Post-­ Foundationalism and Political Liberalism. Farnham/Burlington: Ashgate.

6 Compromise Between Incommensurable Ethical Values Martijn Boot

6.1 Introduction In this chapter I will concentrate on compromise in ethical conflict and disagreement. I will discuss compromises related to disagreement with respect to public decisions between options that represent conflicting incommensurable human values. The central question will be whether in those cases a principled compromise is possible. A ‘principled compromise’1 can be defined as a rational way to achieve a trade-off or balance between conflicting values, for instance, by rational assignment of relative weights. I will argue that in some cases incommensurability will prevent a principled compromise in the defined sense. I will show why phrases used by some philosophers, such as ‘making a rational trade-off’, ‘striking the right balance’, ‘finding the Aristotelian Mean’ or ‘splitting

 Some philosophers use the phrase ‘principled compromise’ in another sense. See May (2005: 317–348). 1

M. Boot (*) University of Groningen, Groningen, Netherlands e-mail: [email protected] © The Author(s) 2020 S. Baume, S. Novak (eds.), Compromises in Democracy, Palgrave Studies in Compromise after Conflict, https://doi.org/10.1007/978-3-030-40802-2_6

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the difference’, are based on misunderstandings about the characteristics of incommensurable values that are usually at stake in the pursuit of a compromise. I will show that incommensurable values lack an equivalence relation and how this prevents a determinate trade-off or balance between them. This is especially important with respect to the pursuit of compromises in ethical conflicts, including conflicts of justice, where we need a rational and ethical justification for the final decision. I will argue that the model of deliberative democracy presents a promising procedure for making the final decision legitimate but that, in the relevant cases, it cannot avoid an ethical deficit.

6.2 S  ome Common Views on the Nature of a Compromise A compromise is often regarded as a trade-off or balance between competing values or conflicting interests.2 According to some philosophers— amongst others Stuart Hampshire (1984: 118–119), Henry Richardson (1997: pp.  235, 238f, 243, 253, 254–266) and Charles Taylor (2001: 118)—it is possible to make a rational trade-off between rival human values and to rationally weigh their relative importance. These philosophers believe that a trade-off between antithetical values concerns the pursuit of an ‘Aristotelian’ mean or balance. Hampshire argues that ‘… in politics and government, the decision in a situation of conflict often involves a trade-off … One could properly speak of a trade-off if one were trying to combine a decent degree of one value with a decent degree of the conflicting value. The trade-off would then be an Aristotelian balance…’ (1984: 119). And according to Taylor: ‘… adjudication and balance between two conflicting values are possible if we approach value pluralism in an Aristotelian framework. That is, we can weigh the relative importance of the goods that concern us…’ (2001: 118). Also Henry Richardson (1997) proposes an ‘Aristotelian’ approach of searching for

 Where I speak about conflicting interests, principles, virtues or demands, it is assumed that they concern conflicts between the values on which they are based. 2

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reconciliation (‘mutual fit’) of opposing values.3 According to Jonathan Baron: ‘There are times when we are put in a situation in which any action we take seems to violate a prescriptive moral rule … tradeoffs are always possible. One must simple choose the course that does the least harm, all things considered’ (1986: 15). Michael Stocker points out that ‘contemporary ethical theories talk of trade-offs of different and plural values. These involve balancing different goods against each other … a trade-off involves a comparison, showing equality, between different values’ (1999: pp. 137–138, 203).4 A common view is that an Aristotelian balance or the Doctrine of the Mean cannot be applied to the problem of conflicts of (ethical) values and compromises between them, because Aristotle would not have recognized the rationality of such kind of tensions. It could be said that, if you follow Aristotle’s philosophy, conflicts of values are only apparent; a clear view of the relevant issues would show that the seeming tension is caused by extreme positions and not by a real conflict between plural values. Moreover, if a right balance exists, and if it is struck, there is no need for compromise because the relevant action would then be completely virtuous without it sacrificing any real value. However, in his book Plural and Conflicting Values Stocker argues that, contrary to the received view, ‘Aristotle explicitly allows for conflicts of values—even in good people’ (1999: 51). ‘Virtues, too, quite generally involve incommensurable values. For they are concerned with important human situations, in which for systematic reasons we have to choose between incommensurable values’ (Ibidem: 151). Interestingly, Stocker tries to apply the Doctrine of the Mean to conflicts between incommensurable values. In his book On Compromise and Rotten Compromises Avishai Margalit discusses the nature of what he calls a ‘sanguine compromise’ (2010: 48). A sanguine compromise differs from other—so-called anaemic compromises—as follows. A sanguine compromise is based on mutual recognition of each party’s claim; the parties regard each other’s claim as equally legitimate. Therefore, according to Margalit, a sanguine compromise  Michael Stocker (1999) proposes a similar Aristotelian approach.  Stocker, Plural and Conflicting Values, pp. 137–138, 203.

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should be an agreement ‘halfway’. It requires that the difference is split— that is, divided ‘not too far from the middle’. Margalit gives an example of a sanguine compromise borrowed from the Bible (Ibidem, p.  39).5 Abraham wants to buy a piece of land from Ephron, to bury his wife. Ephron asks 400 pieces of silver. Abraham wants to pay 300 pieces. Both parties respect each other and agree that neither price is unreasonable. In that case, a sanguine compromise is an agreement ‘halfway’, a fair balance, that is, a price halfway, so 350 pieces of silver. My aim is to show that the phrases used by the philosophers I quoted are misleading. Phrases such as ‘making a rational trade-off’, ‘striking the right balance’, ‘finding the Aristotelian Mean’, ‘splitting the difference’, ‘finding the middle ground’ and ‘meeting halfway’ are based on misunderstandings about the characteristics of conflicting incommensurable values that are usually at stake in the pursuit of a compromise.

6.3 ‘Aristotelian’ Balance Can a tension between heterogeneous values be determinately resolved via an ‘Aristotelian’ balance? Aristotle believed that ‘complete virtue’ is attainable, at least in principle (i.e. if ‘bad luck’ does not interfere). An Aristotelian virtue is an equilibrium, a mean between extremes. In the case of a single virtue, the relevant extremes represent ‘disvalues’, namely a deficit and an excess of value. Vice is either an excess or a deficiency of the relevant value, while virtue hits the right balance. Moral virtue is concerned with actions lying between extreme alternatives. The right balance between these alternatives is determined by practical wisdom (phronesis). Let us assume that courage is constituted by an optimal balance between two extremes: ‘cowardice’ (a deficit) and ‘rashness’ (an excess) (vi. 1115b25 ff.). Because rashness and cowardice are disvalues instead of values, the mean is no resolution of a conflict between values. The situation is different if the extremes do not represent vices but virtues, not negative but positive values, which (contingently or inherently) conflict  I somewhat adapted the example.

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with each other. Take for instance the value of contemplation versus the value of adventure. We cannot simultaneously be a Narcissus who leads a contemplative life and a Goldmund who leads an adventurous life.6 If we want to realize a value optimally, the choice is often ‘either-or’ rather than ‘and-and’. Kierkegaard could not combine his vocation with a marriage to Regine Olsen. Gauguin could completely develop his artistic talent by giving up his promising career in banking and by leaving his family and going to Tahiti. Gauguin had to decide between ‘excellent creativity’ (one extreme), ‘ideal marriage/parenthood’ (the other extreme) or a balance between both extremes, excluding an excellent realization of either value. Here it is not immediately clear whether the extremes are worse than a balance between them and if the balance would be better, where it has to be struck. Aristotle defines his mean as follows: ‘In anything continuous and divisible it is possible to take a part which is greater or less than, or equal to, the remainder ... The equal part is a sort of mean between excess and deficiency’ (1106a). Aristotle believes in a ‘complete virtue’ and a life ‘lacking in nothing’, which consists of hitting the right balance between extremes (Nussbaum 1990: 378). He argues that ‘there are many ways of missing the target ... and only one way of hitting it’ and he adds the following quotation: ‘... men are bad in countless ways, but good in only one’ (1106b28–35). In other words, there is a ‘mean’ (relative to the agent) between the extremes that forms a single optimal target. Some theorists regard the Doctrine of the Mean as epistemologically vacuous: it does not give real guidance. Jonathan Barnes argues in his introduction to Aristotle’s Ethics as follows: ‘The Doctrine of the Mean is incapable of advising because it enshrines an analytic truth.’ ‘If I am puzzled about how I should act and you advise me to observe the mean, then I know nothing more than I did before; I am not better off, no better informed about the moral possibilities and demands of my situation’, as Aristotle himself admits (Ethics, 1138b18-32). Any point may turn out to be the mean. ‘Act in accordance with the mean’ thus becomes ‘Act as you should act’ (Barnes 2004: xxiv).  See Hermann Hesse’s novel Narcissus and Goldmund (2002).

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David Pears regards the Doctrine of the Mean not merely as epistemologically but even as conceptually senseless. I follow Stocker’s illuminating explanation of Pears’ view. Pears believes that courage as a mean is incoherent. Courage involves two distinct feelings, ‘confidence’ and ‘fear’ and—associated to these feelings—two distinct goals: achievement of victory and avoidance of danger. ‘Just as fear and confidence are not species of the same feeling and do not shade into each other, victory and danger are not species of the same thing nor do they shade into each other. Too much of one is not too little of the other, nor does it approach, much less shade into, the other (Stocker 1999: 132).’ Pears concludes that confidence and fear, and victory and danger, do not lie on the same continuum and thus cannot be in a mean. It might seem that we could compare these distinct feelings and ends by seeing which is closer to its own particular mean. But the mean involves incommensurable determinants (Ibidem, 153). How to compare incommensurable feelings on different continua and how to compare distances on different continua? How can we put together the distinct mean of fear and the distinct mean of confidence (Ibidem, 135, 136, 140)? Stocker, who believes in the coherence of the Aristotelian mean, gives the following answer. If the distinct feelings confidence and fear and their own distinct objects victory and avoidance of danger are understood as being independent of each other, existing on their own, then they cannot make up a mean of feeling (Ibidem, 140). But they are interdependent. The appropriate amount of fear in any particular case is a function of the features of the complex of the danger and victory—not just of features internal to the danger (Ibidem, 141). Something similar applies to confidence. So values should not be balanced on their own but in the context of a concrete situation. ‘Given what we are and how we are situated, to give too much weight to one will force us to give too little to the other (Ibidem, 146–147).’ In sum, ‘courage involves integrating the dangers and the victory, the fear and confidence, into one coherent and settled emotional appreciation of the situation (Ibidem, 144).’ Stocker responds to Pears’ suggestion that the different values cannot be measured on a homogeneous scale as follows. Complex unities of feeling do indeed not allow for a continuum with a homogeneous scale composed of more and less of a single good. We need a balance that allows for

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many elements each of which can tip the balance in a different direction. This balance is a device for comparing incommensurable values. The mean is achieved when there is not a simple balance but when ‘each of the weights is in its proper, mean place. There need be no common units of value which are increased or decreased to reach the mean both in the overall situation and in regard to the particular virtues (Ibidem: 149)’. Stocker’s analysis is thorough, profound and, I think, correct. But I do not think that this refutes the core of Pears’s objection and resolves our problem: the possibility to find a mean between heterogeneous values. Also Stocker himself recognizes that the problem has not been resolved: ‘... the point remains the same: if two feelings are incommensurable, how can we make sense of one feeling being more or less of a mean than another ... (Ibidem: 152)?’ Even if the Doctrine of the Mean is assumed to be conceptually coherent, it may appear to be epistemologically vacuous (see above). Premising that an optimal or single right balance does exist (for a particular person and situation) between heterogeneous values, it is not clear how to determine it. Stocker does not think that the charge of epistemological senselessness is correct but admits that he cannot refute it either ‘... a resolution of these issues can come only after a thoroughgoing study of commensurability (Ibidem)’. I do not know whether the study of (in)commensurability on which this chapter is based is thorough enough, but it supports rather than refutes the charge of epistemological (and even conceptual) incoherence of the Doctrine of the Mean. It does not show that weighing heterogeneous values as such is incoherent, but that the assumption of the existence of a golden mean (a determinate and single right balance) seems incoherent (see below). Stocker tries to give an indirect counter-argument by showing that if the heterogeneity of the values implies a problem for the Doctrine of the Mean, ... lack of homogeneity is a problem for any ethics that allows for different values that need to be amalgamated. Contemporary ethical theories do not talk of a mean of different values. But they do talk of mixes and trade-offs of different and plural values. They involve balancing different goods against each other, different bads against each other, and different goods

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against different bads. The correct balance is hardly to be understood in terms of one continuum. But not having such a continuum is what was said to be so problematic for the Doctrine of the Mean. Thus, if the lack of such homogeneity makes the Doctrine problematic, if not incoherent, it would also do this to those contemporary theories cast in terms of mixes and trade-offs of plural values. For the problems come not from the special sort of weighing and comparing involved in determining a mean, but from weighing and comparing non-homogeneous values and elements (Ibidem: 137–138).

I think Stocker is right, but this shows that the relevant issue forms indeed a problem not only for Aristotle’s mean but for all other ethical approaches in which heterogeneous values are weighed and balanced, rather than that it shows that it does not form a problem. According to Stocker we must conclude ‘either that there is no problem for Aristotle’s ethics or ours, or that, contrary to all appearances, everyday and seemingly plausible and unproblematic forms of judgments are in fact unacceptable (Ibidem: 130)’. However, this either/or conclusion is a False Dilemma. Incommensurability is a necessary but not a sufficient condition of hard choices. If incommensurability does not pose problems in particular situations, it does not follow that it does not pose problems in other situations. For instance, in everyday choices between trivial options, it does not matter if the alternatives are incommensurable; such decisions do not require a rational justification. The fact that incommensurability does not pose problems for trivial choices, does not mean that it does not pose problems for important decisions, such as choosing between different ways of life, different organizations of society, deciding between conflicting interests of rival parties or between clashing moral requirements or in questions of life and death (as in the case of courage as the right or mean feeling towards the danger of being killed). The incommensurability of two dimensions means the absence of an equivalence relation (a level of equality7), which seems to exclude an (even roughly) determinate Aristotelian mean. True, it is possible to make  As Aristotle himself argues, ‘without commensurability there would be no equality’ (The Nicomachean Ethics, 1133b18–20). 7

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a specific hierarchy or ordinal ranking of heterogeneous values, as Aristotle advocates. But, due to incommensurability, the specific ranking largely depends on intuitive weight assignment. Even for one and the same person many different rankings may be compatible with rationality and reasonableness. So, Aristotle’s advice seems to lack determinacy and to be incapable of giving substantive guidance. This makes the idea of ‘hitting a single optimal target’ in many cases incoherent and unworkable. Besides, a single optimal target seems difficult to reconcile with the idea that a person may constitute her own identity in different ways. It is difficult to imagine that there is a (for every person, society or situation) single optimal choice of values and a single optimal balance between these values. Finally, it is not clear why a balance between virtues result in ‘complete virtue’ in the sense that no irreducible value is lost and that it is ‘lacking in nothing’. ‘Complete virtue’ seems difficult to maintain if the agent or the society has to choose between important but incompatible heterogeneous values. As Robert Merrihew Adams argues, it is not simply the case that less of the same value is lost in making a balance (Adams 1999: 54). On the contrary, something qualitatively different and irreducible is sacrificed. ‘Complete virtue’ (suggesting virtue without loss) and sacrifice of irreducible value seem difficult to reconcile. Adams: ‘The golden mean is not acceptable, in my opinion, as a complete ideal of virtue. There is certainly an excellence ... in the … balanced human life. But the value of such balance is one of the often incompatible values among which we sometimes have to choose. There are also values of extravagance, and some of them are great values, and command a more astonished admiration than the values of the balanced life. What is most admired in saints is often to be found among the values of extravagance (Ibidem: 55).’ It is not evident that in the case of two competing positive values a balance is always better than one of the extremes. A balanced life is itself one of the values against which the extreme values must we weighed. The pursuit of compromises usually concerns tensions between positive values, such as liberty versus equality; national security versus personal privacy; freedom of expression versus social cohesion; economic growth versus protection of the environment; efficiency versus equity in the distribution of welfare or the distribution of scarce health care

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resources (e.g. production of a larger total welfare and larger total health benefit versus a fairer distribution of these advantages); or need versus desert in distributive justice. While a balance between negative extremes (e.g. ‘shyness’ and ‘shamelessness’) constitutes value and virtue (e.g. ‘modesty’), an attempt to combine positive extremes (e.g. maximal equity and maximal efficiency) will often fail and lead to a loss in value and a compromise rather than a right balance between mutually supporting values. Neither a single person nor a single society seems capable of completely incorporating all important human values without loss. In sum, there seem to be at least four problems with the Aristotelian idea of ‘complete virtue’ and the attempts to achieve reconciliation between rival incommensurable values based on this idea. First, a balance between values often concerns a compromise rather than mutual elevation and does not preserve ‘complete virtue’ without sacrifice of irreducible value. Second, it is not evident that a compromise between competing values is always better than realizing one of both values optimally. Third, if it would be better to strike a balance than to pursue one of the values optimally, it is not clear how to determine where the balance should be struck in the wide range of different rational possibilities. Fourth, it is implausible that there is a determinately right balance, even for one and the same person or society in one and the same situation. The next section will further substantiate the third and fourth problem.

6.4 Incommensurability In this section, I hope to demonstrate that a mean and a balance between conflicting incommensurable values do not exist. This means that a principled compromise is impossible in the sense of a trade-off or balance based on rational comparisons and rational assignments of relative weights. The result will be persistent reasonable disagreement concerning the right compromise between incommensurable values and any achieved compromise will contain a significant element of arbitrariness. Two values are incommensurable if they have different dimensions that cannot be reduced to one common dimension. An essential characteristic of two incommensurable values is the lack of a point of

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equivalence: no amount of one value is equal to (not even roughly equal to) any amount of the other value (Boot 2017: 24). I will give an example to demonstrate this. Let us compare rival policies with respect to the production and distribution of welfare: an Egalitarian policy versus different Welfare policies. Increasing welfare Welfare policy BETTER than Egalitarian policy

Egalitarian policy

Welfare policy 2

 Welfare policy 1

Welfare policy WORSE than Egalitarian policy

Decreasing welfare

The Egalitarian policy produces less welfare but is fairer than the Welfare policies; it distributes welfare more equally. The different Welfare policies are shown in a vertical chain: the higher in the chain, the larger the welfare of the Welfare policy. Let us assume that the Welfare policies in the upper part of the chain are overall better than the Egalitarian policy because, although they are less fair, they produce extremely more welfare than the Egalitarian policy. Let us further assume that the Welfare policies in the lower part of the chain are definitely worse than the Egalitarian policy because they produce hardly more welfare than the Egalitarian policy while they are less fair. Between the upper and lower part of the chain there is a zone, indicated by a broken line, in which it is not clear that one policy is definitely better than the rival one. Suppose that in this zone there is a Welfare

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policy 1, which produces a particular amount of welfare. Suppose we conclude that Welfare policy 1 is neither definitely better nor definitely worse than the Egalitarian policy. Does the conclusion that neither policy is better than the other mean that Welfare policy 1 and the Egalitarian policy are roughly equally good in the sense that they represent an equivalent amount of total value, or that the larger welfare of Welfare policy 1 has roughly equal weight as the larger fairness of the Egalitarian policy? This need not be the case. This can be shown by the so-called ‘improvement argument’. Take a Welfare policy 2. This policy produces significantly more welfare than Welfare policy 1. Therefore, other things being equal, Welfare policy 2 is definitely and significantly better than Welfare policy 1. Does this make Welfare policy 2 also definitely better than the Egalitarian policy? This need not be the case. Why? The reason for this is that the Egalitarian policy remains significantly better with respect to fairness. It is implausible that a significant (but not extreme) increase of welfare—a value that fundamentally differs from the value of equity or fairness—would make Welfare policy 2 definitely better than the Egalitarian policy. If it is true that Welfare policy 2 is not better than the Egalitarian policy, then the Egalitarian policy cannot be said to be equally good as Welfare policy 1: indeed, if they were equally good, then an improvement of Welfare policy 1 would make it definitely better than the Egalitarian policy. If this reasoning is sound, the conclusion must be that the Egalitarian policy is not equally good as Welfare policy 1. But, as we concluded above, the Egalitarian policy is also not better or worse than Welfare policy 1. If so, this is an instance of what I call ‘3NT’ (‘triply not true’). It means that it is not true that the Egalitarian policy is better than, and not true that it is worse than, and not true that it is equally good as the relevant Welfare policy. In the figure, there is not any level where the Egalitarian policy is equally good as one of the Welfare policies. In other words, there is no amount of fairness that is equivalent to any amount of increased welfare. The Egalitarian policy and the Welfare policy are not even roughly equally good. Indeed, if Welfare policy 1 were roughly equally good as the Egalitarian policy, Welfare policy 2 would be not only considerably better than Welfare policy 1, but also considerably better than the

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Egalitarian policy. But this is not the case. In the relevant range, welfare considerably increases, without making Welfare policy 1 better than the Egalitarian policy. If this is correct, it means that over a large range of increasing welfare the relation between the two policies is an instance of 3NT in the sense that the Egalitarian policy is neither better than, nor worse than, nor equally good—not even roughly equally good—as the Welfare policy. We might call this large range the ‘range of rational indeterminability’. In this range reason does not unambiguously show which option should be chosen all things considered because an impartial and determinate comparative worth of the relevant options does not exist. Also common sense supports the idea of the lack of an equivalence relation. As W.D. Ross more than half a century ago argued, ‘it is unintelligible how any amount of a particular value could be equal in value to any amount of a different value, if the two values are incommensurable (Ross 1930: 154).’ It is important to note that this absence of any equivalence apparently applies to all incommensurable values. What is the significance of this for our thesis? The absence of any equivalence between incommensurable values is the reason why a rational trade-off is not possible and why a determinate Aristotelian Mean and a Right Balance between these values do not exist. Absence of equivalence fundamentally prevents a determinate trade-­ off or balance. Reason ‘under-determines’ the choice, that is, reason is silent about the right trade-off or balance between incommensurable values, simply because they do not exist. Because in the case of 3NT options the range of rational indeterminability is large, reasonable persons will often assign considerably divergent relative weights to the competing policies, and as a result will come to opposite conclusions about which policy should be chosen. Within the wide range of rational indeterminability, reason does not show that the divergent relative weights are unreasonable or irrational. The outcome will be reasonable disagreement concerning the question which policy should be chosen. All this does not mean that a compromise between incommensurable values is impossible. However, it does mean that a possible compromise is not a principled compromise in the defined sense. Because reason largely under-determines the final choice, the achieved compromise will

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always contain a significant element of arbitrariness. Any compromise involves an ethical deficit, in the sense that the final compromise will be incompletely ethically justified. With respect to two 3NT options there is no overall reason for choosing one alternative compromise rather than the other. For instance, choosing the Welfare policy instead of the Egalitarian policy cannot be rationally justified because the reasons for this choice do not determinately outweigh the reasons for the non-­chosen alternative.8 This is especially problematic if, as in this case, the compromise entails a moral deficit (if we choose the Welfare policy, we will end up with less fairness than could have been possible. This will be further explained in Sects. 6.6 and 6.7). This problem does not necessarily exclude principled compromises that are not based on a trade-off or a balance. In the following section I will briefly discuss a possible example of such a compromise by discussing John Rawls’s well-known Difference Principle and G.A.  Cohen’s criticism of it.

6.5 The Difference Principle Rawls developed a theory of justice, which reconciles rival human values and competing principles of justice without the need of making trade-­ offs or assigning relative weights. Rawls was deeply aware that conflicts between incommensurable values cannot be resolved via a trade-off. That is why he has developed a theory of justice that avoids it. An interesting example is his Difference Principle. The Difference Principle tries to reconcile greater welfare and fairness in the distribution of welfare. It tries to do this without relying on a trade-off between greater welfare and fairness. According to the Difference Principle, the social and economic inequalities are to be to the greatest benefit of the least-advantaged  Cf. Joseph Raz: ‘Where the considerations for and against two alternatives are incommensurate, reason is indeterminate. It provides no better case for one alternative than for the other’ (1986: 333–334). And Thomas Nagel: ‘[When each of two choices] seems right for reasons that appear decisive and sufficient, arbitrariness means the lack of reasons where reasons are needed, since either choice will mean acting against some reasons without being able to claim that they are outweighed (1979: 129, emphasis original).’ 8

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members of society. The Difference Principle takes into account both greater welfare and fairness. It takes into account greater welfare by allowing inequalities that cause an incentive to produce more welfare for all. It takes into account fairness by only allowing inequalities that are to the greatest benefit of the worst-off.9 Let’s go back to our example where we are faced with a choice between two hypothetical policies (see Sect. 6.4). How would a resolution of the conflict between fairness and greater welfare look like if the Difference Principle would guide public policy? In Table  6.1 the numbers indicate incomes. A policy based on the Difference Principle would be in-between the Egalitarian policy and the Welfare policy: it would be less egalitarian than the Egalitarian policy, and more egalitarian than the Welfare policy; and its mean income would be higher than the mean income in the Egalitarian policy, and lower than in the Welfare policy. Table 6.1  The difference principle and a reconciliation between fairness and greater welfare Incomes Policies Egalitarian policy Difference principle Welfare policy

Least-advantaged group

Middle group

Most-advantaged group

Mean income

200

400

600

400

300

700

1100

700

100

800

1500

800

 As G.A. Cohen explains: ‘For Rawls, some people are, mainly as a matter of genetic and other luck, capable of producing more than others are’ (2008: 29). (The prospect of ) higher wages would generate an incentive for these people to produce a greater total product than if strict equality would prevail. If inequality generating incentives are necessary to let the talented people produce more and if this greater product would at the same time benefit the less fortunate more than if equality would have prevailed, then they are just. Rawls: ‘… inequalities of birth and natural endowment are undeserved … Those who have been favored by nature, whoever they are, may gain from their good fortune only on terms that improve the situation of those who have lost out. The naturally advantaged are not to gain merely because they are more gifted, but only to … help the less fortunate as well. No one deserves his greater natural capacity nor merits a more favorable starting place in society. The basic structure can be arranged so that these contingencies work for the good of the least fortunate. Thus we are led to the difference principle (1971: 100–102).’ 9

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In a society based on the Difference Principle the least-advantaged group would do best. Compared to the Egalitarian policy, in a society based on the Difference Principle inequalities are to everyone’s advantage. By contrast the Difference Principle would not allow the rich to get richer at the expense of the poor, as would happen if we would implement the Welfare policy. The principle does not allow that increasing differences do not benefit the worst-off. In sum, the Difference Principle would lead to a reconciliation between fairness and greater welfare. Interestingly, Rawls thinks that the Difference Principle is not a compromise. He believes that it is a principle of justice. Rawls argues that the Difference Principle is simply a requirement of justice, not only because of its concern for the worst-off but also because he thinks that, in the original position and behind the veil of ignorance, all reasonable people will choose the Difference Principle. In other words, there will be consensus about this principle. However, the late Oxford philosopher G.A. Cohen shows in his book Rescuing Justice and Equality why the Difference Principle cannot be a principle of justice and why it is not entirely just (Cohen 2008). The Difference Principle allows large undeserved inequalities. Undeserved inequalities are inequalities that are based on morally arbitrary factors. Table 6.2 shows that the Difference Principle is compatible with large inequalities (again, the numbers indicate incomes). The worst-offs are better off in society Q than in society P with respect to incomes. This means that, if we would have to choose between the two societies, the Difference Principle requires the choice of society Q.  However, the extreme differences in income of the citizens of Q seem difficult to reconcile with complete fairness, at least if these differences are due to morally arbitrary factors, that is, to brute bad luck or good luck, instead of desert or merit. In his A Theory of Justice Rawls himself states that distribution of welfare should not be influenced by morally arbitrary factors. According Table 6.2  The difference principle and large inequalities in incomes Society

Least-advantaged group

Middle group

Most-advantaged group

P Q

100 200

150 2000

200 10,000

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to Cohen the Difference Principle is actually a compromise. It is a compromise between a greater welfare distribution and a fair distribution of welfare. What does this mean for our discussion about principled compromises between incommensurable values? We had concluded that ‘principled compromises’ based on rational trade-offs and relative weight assignments are impossible. But we said that this does not necessarily exclude other forms of principled compromises. The Difference Principle may be an example. However, because this principle is compatible with large undeserved inequalities, people may disagree to what extent these differences may be accepted. If we would conclude that large inequalities cannot be accepted, then the need to weigh greater welfare against fairness cannot longer be avoided. But in that case we have again the problem of making trade-offs or assigning relative weights to these incommensurable values, which is impossible. Besides, even if the Difference Principle would be acceptable, it only works for the specific conflict between greater welfare and a fair distribution. The possible conflicts between other human values cannot be resolved by this principle.

6.6 Conflicts of Justice Justice is a multifaceted concept. The multiple elements of justice are related to plural ethical values, which justice is expected to protect. These values are, for instance, basic liberties, personal privacy, equal opportunities, equal distribution of welfare, legitimate entitlement, concern for the worst-off, need and desert. Some of these values may conflict mutually. Besides, they may clash with other human values, which are not elements of justice (or only indirectly related to justice), such as growth of welfare, efficiency and public security. Because these values may conflict, claims concerning what ought to be done with respect to justice may conflict as well, in at least two different ways. First, the claims of justice may conflict mutually. Let us call them ‘internal conflicts of justice’. Second, the claims of justice may conflict with other human interests. Let us call them ‘external conflicts of justice’.

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An important issue, suitable for illustrating the problem of conflicts of justice, is the distribution of health care resources. Because health care resources are not unlimited, it is important to use them efficiently in order to maximize total health benefit. With the same budget, total health benefit depends on cost-effectiveness of the treatment. However, patient selection purely based on cost-effectiveness and utility of treatment may be at the expense of equity (fair chance of treatment; concern for the worst-off). By contrast, patient selection purely based on equity may be at the cost of total health benefit. The possible conflict between equity and efficiency suggests that a selection procedure that is simultaneously the most just and the most beneficial, does not always exist. If we would conclude that neither the claim of equity nor the claim of efficiency can be ignored, we have to choose a combined approach in which both fairness and outcome are taken into account. If neither claim can be completely fulfilled, then a compromise ought to be struck. Rawls argues that justice requires ‘a proper balance’ between competing claims. Justice should be able to order all important conflicting claims and yield determinate and decisive conclusions.10 Rawls emphasizes the role of assignment of weights as ‘an essential part’ of a conception of justice (Rawls 1999: 37). Weight assignment is necessary to order the relevant conflicting claims. However, in several internal and external conflicts of justice, assignment of impartial and determinate weights is prevented by the incommensurability of the relevant values. This entails that in several internal and external conflicts of justice, we cannot determine whether one claim impartially and determinately outweighs the other. (‘Impartial’ in the sense of independent of a specific personal belief, intuition or preference; ‘determinately’ in the sense of ‘definitely’, ‘decisively’, ‘unambiguously’, ‘not uncertain’, ‘not arbitrary’ and ‘determinable’). In our example of a conflict of justice, the required compromise between efficiency and equity in the distribution of limited health care resources is indeterminate, because both efficiency and equity represent incommensurable values. The cause of this indeterminacy is not that the  Rawls: ‘. . [A] conception of right must impose an ordering on conflicting claims. This requirement springs directly from the role of its principles in adjusting competing demands. . . (1999: 115)’. 10

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claims have roughly equal weights, but because it is neither true that one claim outweighs the other, nor true that they have equal weights or roughly equal weights.11 In this kind of rationally irresolvable conflicts of justice, the justification of the final decision cannot avoid arbitrariness, because, in those cases, each decision will act against reasons that cannot be said to be outweighed by the reasons in favour of which the decision is taken. The result is an ethical dilemma in which neither decision seems capable of avoiding an injustice or other ‘ethical deficit’. The possible consequence is that, in the relevant cases, there is no right answer. In internal conflicts of justice, this would mean that either decision results in an ethical deficit, because neither decision can be completely justified by the fact that the claim in favour of which the decision is taken outweighs the rival claim. Either decision will wrong at least one of the parties.12 In external conflicts of justice there is an uncompensated value deficit if a decision is taken in favour of the claim of justice, while there is a moral deficit if a decision is taken in favour of human interests, which differ from justice. The relevant issues are indeterminate in the sense that they lack a right answer which does justice to both sides. If so, then the justification of the final decision cannot avoid being ‘partial’ in the double sense of ‘incomplete’ and ‘biased’.13 Insight in the incomplete justification of the final decision may lead to the recognition that, if there is reasonable disagreement about what ought to be done, the losing party’s claim is not less legitimate than the winning party’s. This recognition does not remove, but may mitigate, the conflict. It may prevent that the injustice done to the losing party is worsened by ignoring or disregarding her justified and legitimate claim.14

 See the argument about the ‘3NT’ value relation, as discussed in Sect. 6.4.  See also footnote 8. 13  Cf. Sen (1992: 45ff., 134). 14  Cf. Norman Daniels, who emphasizes the importance of careful deliberation ‘that takes seriously the considerations people bring to a dispute’. Such a ‘careful deliberation about the various reasons put forward on both sides has in its favour the fact that even losers will know that their beliefs about what is right were taken seriously by others’ (Daniels’s emphasis, 2008: 116). 11 12

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The above argument shows that justice is not always uncompromising, as Rawls believed.15 Instead we sometimes need to strike a compromise when we are faced with a conflict of justice. However, one of the main problems of an incommensurable value conflict is that any compromise between the relevant options involves a loss of irreducible value, not ­outweighed or compensated by the gain in other values. The loss of irreducible value is the direct consequence of incommensurability, precisely because it entails irreducibility of the values involved. Because reason under-determines the right balance or right compromise, equally rational and well-informed people may assign considerably different weights to the relevant values. Therefore, they will arrive at different, often opposite, conclusions about how the compromise ought to be struck.

6.7 Democratic Deliberation It could be argued that rational deliberation amongst free and equal persons and the exercise of public reason may lead to convergence of judgments about the right thing to do, or the right compromise, between conflicting values and competing requirements of justice. In A Theory of Justice Rawls also emphasizes the unifying power of impartial reason, detached from personal interests, beliefs and conceptions of the good (Rawls 1999: 514). Indeed, if free and equal citizens will make proper use of impartial or public reason, it is conceivable that it will lead to convergence of judgments. In Rawls’s original position, behind the veil of ignorance, people are detached from morally arbitrary judgments because they are ignorant of their personal characteristics, aims, interests and circumstances. If democratic citizens use impartial or public reason, this may promote consensus on basic principles of justice amongst reasonable people. An important condition is that people are free and equal and have the opportunity to deliberate freely and without coercion.  Rawls: ‘Being first virtues of human activities, truth and justice are uncompromising’ (1999: 4).

15

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One of the aims of Rawls’s devices of the ‘original position’ and ‘veil of ignorance’ is to make the choice of principles of justice independent of contingent, changing and inconsistent outcomes of social choice amongst disagreeing democratic citizens who have different backgrounds, beliefs and interests. Rawls’s theory tries to construct an unambiguous, impartial and stable ordering of principles agreed upon by all reasonable and rational people. The theory tries to order and integrate the plurality of principles in a coherent system, making use of a scheme of lexical priorities and the Difference Principle. It assigns lexical priority to equal basic liberties over equal opportunities and it ranks the latter over the Difference Principle. The Difference Principle, in turn, integrates a greater welfare distribution with concern for the worst-off. The lexical ranking of one value above another means that the former—however small its amount—is always more important than the latter—however large its amount. Therefore it will always get priority in cases where the two conflict in practice. A lexical ordering would enable us to resolve practical value conflicts. For instance, when need clashes with utility or greater welfare, Rawls’s theory shows that a social state in which the neediest citizens get priority is more just than a social state with a more utilitarian or greater welfare distribution that goes at the cost of concern for the worst-off. To give another example, above a minimum level of welfare a society with more extensive basic liberties at the cost of economic growth, is shown to be more just than a society with more economic growth at the cost of one or more basic liberties. However, not so many of our political values and principles allow for a lexical ordering on which all reasonable democratic citizens will agree, even if they would apply impartial reason. As Gerald Gaus argues, ‘Little, if anything, is the object of consensus between reasonable people (1996: 293)’, let alone an agreement on a lexical ordering of political values. And according to John Broome, a lexical ordering is very implausible in general: ‘it is implausible that any value lexically dominates any other (Broome 2004: 24)’. Generally acceptable and even universally valid values do usually not lead to consensus on their ranking because the rationally permissible weights assigned to them differ considerably. The widespread belief that, by deliberation, the range of weights assigned to relevant values could be

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narrowed down, is, I think, partly based on the assumption that the differences in weight assignment are due to inconclusiveness rather than to indeterminacy, and that knowledge, information and rational deliberation will promote convergence and consensus. I call this the ‘convergent reason assumption’: the assumption that true insight results in convergence of value judgments. This assumption is not very plausible if the disagreements can more plausibly be explained in terms of indeterminacy than inconclusiveness (Boot 2007: 283). Empirical studies corroborate the claim that relative weights assigned to incommensurable values considerably differ between equally rational persons (Nord 1993; Daniels and Sabin 1997). All participants to the empirical studies were well-informed, intelligent and acquainted with the relevant issues. The wide range seems the result of reasonable rather than unreasonable disagreement and this makes a significant narrowing-down of the range of ‘rationally permissible’ weights implausible. Daniels and Sabin argue that the large inter-personal differences in weights which people assign to different moral concerns ‘probably depend on how these moral concerns fit within wider conceptions of the good ... If so, there is good reason to think these disagreements will be a persistent feature of the situation (1997)’. In sum, it is not a lack of knowledge or information (inconclusiveness) that seems to underlie the width of the range of different weights, but rather the plurality of reason itself, the deep moral divisions and the incommensurability of the competing relevant values themselves (indeterminacy). The unrealistic expectation of the possibility of rational consensus amongst all reasonable people forms also the weak link in Jürgen Habermas’s ‘discourse ethics’ which is assumed to be capable of resolving value conflicts by rational deliberation and moral discourse applying ‘valid normative rules’. According to Habermas ‘a norm is valid if and only if it can be accepted by all affected as participants in discourse in the light of their values and interests (Finlayson 2005: 81–82).’ Because of this condition of agreement of ‘all concerned’, ‘not many candidate norms will survive such a severe test of its validity, and those that do will

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be extremely general (ibidem: 87)’.16 Many values but only few rankings of these values are acceptable for all rational and reasonable people. How should we deal with the problem of disagreement related to an incommensurable value conflict in practical cases? How should we strike a compromise when it is not to be expected that we reach consensus on the resolution of the relevant value conflict? Which decision procedure should we follow? In other words: if we cannot achieve consensus, how can we still make a compromise? One may argue that in a democracy we should decide by the majority rule. However, what gives the majority rule its legitimacy as a procedure for resolving moral disputes about public policy? One may answer that the majority rule counts everyone’s interests equally in the decision process. However, this procedure often simply aggregates the preferences of the voters. Is this a sufficient justification in cases of fundamental moral disagreement? There is an essential difference between preferences and ethical values. Ideally, we would like to resolve moral disputes through argument and deliberation about reasons that we consider convincing, instead of by counting preferences. In cases of moral disagreement it is not sufficient to be told that ‘a majority of people think otherwise’. Majorities can be morally wrong and may let us do the wrong thing. Therefore, according to Daniels, counting votes fails as an account of the legitimacy of a democratic procedure because it ignores the way reasons play a role in our deliberations about what is right (Daniels 2008). But there is still another important reason not to accept the majority rule if it is based on merely counting preferences. In the case of incommensurable value conflicts, there are usually winners and losers. As the example of the allocation of scarce medical resources shows, the winners and losers win and lose something very important, namely health, or even life. So the final decision we take has far-reaching consequences for the concerning persons. Every decision will make some people better off and some worse off than they would be as a result of an alternative 16

 Although Habermas initially denied this, he later conceded the point.

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decision. That is why we have to take this decision very carefully. In the relevant decision-making, justification of the decision is necessary, because losers expect a reasonable explanation why they do not receive the resources. According to Daniels the moral controversy that surrounds the creation of winners and losers results in a legitimacy problem. Under what conditions do decision makers have the moral authority to decide on the selection criteria? In order to make the decision legitimate, we must seek terms of fair cooperation that all parties in the dispute can accept as reasonable. In other words, we must seek fair cooperation that rests on justifications acceptable to all (compare the views of Rawls, Scanlon and Habermas). In the deliberation we should only appeal to kinds of reasons that all can recognize as acceptable or relevant. The majority should not exercise brute power of preference, but should be constrained by having to seek reasons for its view that are justifiable to all who seek mutually justifiable terms of cooperative and democratic decision-making. So the decision procedure requires careful deliberation about the various reasons put forward on both sides, with the goal of seriously considering all relevant reasons. Only then, also losers will know that their beliefs about what is right were taken seriously by others. Both sides of the dispute should recognize the relevance and appropriateness of the kind of reason offered by the other, even if they disagree about the relative weight, interpretation or application of that reason. This procedure is called ‘deliberative democratic decision-making’. As Daniels argues, on this view, the minority can at least assure itself that the choice of the majority rests on the kind of reason that appropriately plays a role in the deliberation. Habermas has identified the following four conditions of an ideal democratic deliberation situation: 1. No party or person who is capable of making a relevant contribution has been excluded; 2. Participants have equal voice; 3. They are internally free to speak their honest opinion without deception or self-deception; 4. There are no sources of coercion built into the process and procedures of discourse.

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So ideal democratic deliberation among decision makers is deliberation that is free from distortions of unequal political power, such as power obtained through economic wealth or the support of interest groups. In sum, a deliberative democratic procedure means that, for a democratic decision to be legitimate, it must be preceded by public deliberation, not merely aggregation of preferences. However, although democratic deliberation is a condition for legitimacy of the final decision, it cannot prevent an ethical deficit. As we have discussed in Sect. 6.6, either decision between 3NT options that represent rival ethical values results in an ethical deficit. The reason is that, in the relevant cases, neither decision can be completely justified: neither claim in favour of which the decision is taken outweighs the rival claim. The consequence is that either decision will wrong at least one of the parties without a complete justification—a justification based on the argument that the final decision is all things considered the right one (which is not the case). The majority rule will not remove this ethical deficit, because it accepts instead of resolves the ethical conflict under consideration. Even if the democratic deliberation would lead to consensus about the compromise to be made (e.g. a compromise between greater welfare and fairness in the distribution of welfare according to Rawls’ Difference Principle), this would not remove the ethical deficit (in this case, undeserved inequality).

6.8 Conclusions We have discussed that incommensurable values lack any point of equivalence. This implies that between these incommensurable values, there cannot be an objective, impartial and determinate traded-off or balance, not even in principle. Even if we start from generally accepted or even universally valid ethical principles and demands of justice, the exercise of reason, including impartial reason, will not lead to the same compromises between and rankings of these principles and demands of justice. This means that different societies may choose different compromises without necessarily being less rational or less reasonable.

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As Isaiah Berlin and John Rawls have emphasized, there is no society without loss of human values, because the full range of competing human values is too extensive to fit in any one social world (Berlin 1991: 13 and 1969: 167 ff.; Rawls 1996: p. 197 n. 32). Optimal realization of some values in some societies may be incompatible with optimal realization of some other values. These other values may be better realized in other compromises between and rankings of values in other societies. In other words, a complete reconciliation and optimal realization of all conflicting human values in one single society is not possible. This entails that a single global society with a single ranking of human values and one and the same compromise between or ordering of ‘values of justice’ would be at the expense of a loss of some of these values. This shows the importance of a diversity of cultures and nations, in which universally valid human values and ‘values of justice’ may be ranked differently. In this respect, local compromises may be preferred to global compromises—and perhaps even divergent rankings of domestic justice may be preferred to a uniform and single ranking of global justice—provided that fundamental ethical principles and minimal requirements of justice are universally recognized.

Bibliography Adams, R. M. (1999). Finite and Infinite Goods, a Framework for Ethics. Oxford: Oxford University Press. Aristotle (2004). The Nicomachean Ethics (J.A.K.  Thomson, Trans.), Revised with Notes and Appendices by Hugh Tredennick, Introduction and Further Reading by Jonathan Barnes. London: Penguin Books. Baron, J. (1986). Trade-Offs Among Reasons for Action. Journal for the Theory of Social Behavior, 16, 173–195. Berlin, I. (1969). Two Concepts of Liberty. In Four Essays on Liberty. Oxford: Oxford University Press. Berlin, I. (1991). The Pursuit of the Ideal. In The Crooked Timber of Humanity. New York: Knopf. Boot, M. (2007). Incommensurability, Incomplete Comparability and the Scales of Justice (DPhil Dissertation). University of Oxford.

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Boot, M. (2017). Incommensurability and Its Implications for Practical Reasoning, Ethics and Justice. London/New York: Rowman & Littlefield International. Broome, J. (2004). Weighing Lives. Oxford: Oxford University Press. Cohen, G. A. (2008). Rescuing Justice and Equality. Cambridge, MA: Harvard University Press. Daniels, N. (2008). Just Health: Meeting Health Needs Fairly. Cambridge: Cambridge University Press. Daniels, N., & Sabin, J. (1997). Limits to Health Care: Fair Procedures, Democratic Deliberation, and the Legitimacy Problem for Insurers. Philosophy and Public Affairs, 26, 303–350. Finlayson, J. G. (2005). Habermas: A Very Short Introduction. Oxford: Oxford University Press. Gaus, G. F. (1996). Justificatory Liberalism: An Essay on Epistemology and Political Theory. Oxford: Oxford University Press. Hampshire, S. (1984). Morality and Conflict. Cambridge, MA: Harvard University Press. Hermann, H. (2002). Narcissus and Goldmund. London: Peter Owen. Margalit, A. (2010). On Compromise and Rotten Compromises. Princeton: Princeton University Press. May, S. (2005). Principled Compromise and the Abortion Controversy. Philosophy & Public Affairs, 33, 317–348. Nagel, T. (1979). Mortal Questions. Cambridge: Cambridge University Press. Nord, E. (1993). The Trade-Off Between Severity of Illness and Treatment Effect in Cost-Value Analysis of Health Care. Health Policy, 24, 227–238. Nussbaum, M. C. (1990). Love’s Knowledge. Oxford: Oxford University Press. Rawls, J. (1971). A Theory of Justice. Cambridge, MA: The Belknap Press of Harvard University Press. Rawls, J. (1996). Political Liberalism. New York: Columbia University Press. Rawls, J. (1999). A Theory of Justice (Rev ed.). Cambridge, MA: The Belknap Press of Harvard University Press. Raz, J. (1986). The Morality of Freedom. Oxford: Oxford University Press. Richardson, H.  S. (1997). Practical Reasoning About Final Ends. Cambridge: Cambridge University Press. Ross, W. D. (1930). The Right and the Good. Oxford: Oxford University Press. Sen, A. (1992). Inequality Re-Examined. Cambridge, MA: Harvard University Press. Stocker, M. (1999). Plural and Conflicting Values. Oxford: Oxford University Press. Taylor, C. (2001). Plurality of Goods. In R. Dworkin, M. Lilla, & R. B. Silvers (Eds.), The Legacy of Isaiah Berlin (pp.  113–119). New  York: New  York Review of Books.

7 Cultural Compromise Dominik Gerber

Political liberals have long worried that the invocation of culture or cultural identities in public discourse leads to a particularly deep kind of disagreement, originating not only in value conflict but also in incommensurable modes of reasoning and symbolic understanding. Diverging claims on the public status of a religious practice, a historical injustice, or a minority language, on this familiar reading, renders rational agreement implausible and makes compromise an inevitable second-best strategy for upholding social cooperation.1 My focus in this chapter is on the nature and presuppositions of the sort of compromise involved when two cultural groups who are divided at the level of symbolic understandings make an agreement that both regard as sub-optimal, but nonetheless

 See e.g. Habermas (1996: 165–66).

1

D. Gerber (*) Stockholm School of Economics in Riga, Riga, Latvia e-mail: [email protected] © The Author(s) 2020 S. Baume, S. Novak (eds.), Compromises in Democracy, Palgrave Studies in Compromise after Conflict, https://doi.org/10.1007/978-3-030-40802-2_7

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preferable to the status quo.2 Call this sort of compromise cultural compromise.3 I seek to argue that compromise lends itself as an appealing decision-­ making mechanism under circumstances of cultural pluralism. It does so because it is respectful of the complex and inherently political basic structure of cross-cultural conflict. This is not to say that deliberative arrangements aiming at cross-cultural compromise should be pitted against more ambitious arrangements aiming at moral or epistemic consensus. Rather, on the view I defend, compromise should be taken seriously as a conflict resolution strategy whenever the joint occurrence of deep symbolic disagreement both at the inter- and intra-cultural level thwarts the genesis of a shared substantive conception of rationality. When cultures compromise with each other, they treat each other as hermeneutical peers. That is, the parties recognize one another, minimally, as equal participants in a hermeneutical enterprise of understanding unfamiliar and perhaps irritating symbolic meaning. Compromising cultures need not assume a common pre-defined framework of rationality or public reason; they merely need to assume that their disagreement, no matter how deep, does not a priori foreclose the possibility for reaching a sufficient level of mutual understanding of the other culture’s symbolic stakes and the interests that derive from them. Historically, cultural compromises have a pedigree going back to the sixteenth and seventeenth century, when Europe sought to emerge from the catastrophic religious wars of the time. Subsequently, they have been fundamental to the formation of church-state relationships that (perhaps with the exception of France) characterize modern Western secularism. In the Ottoman Empire, cultural compromises lead to the establishment of a long-enduring system of extensive self-government rights along  I borrow this formulation of the basic pattern of compromise from Weinstock (2017: 636).  A cultural compromise may, but need not overlap with the family of “multicultural” political arrangements (and the related normative arguments) that accord cultural communities comprehensive and enduring “group-differentiated rights.” See for example Kymlicka (1995). A cultural compromise is a less encompassing arrangement that may only apply to a specific cultural group or cultural practice. It may be struck in a polity that otherwise rejects the agenda of cultural accommodation policies political theorists would commonly call multiculturalism. For the sake of clarity, I shall therefore refrain from using the term “multicultural” (and prefer “cross-cultural”) when I refer to the process of compromise-making between cultural groups. 2 3

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religious and ethnic lines (millet system). And in the recent past, politically salient initiatives for cultural compromises have revolved around issues such as minority language rights, indigenous land rights, school curriculum, or the presence of “ostentatious” religious symbols in the public space. Wherever there is disagreement between claims made on behalf of culture, there is a dimension of symbolic conflict. Cultural groups justify their public claims in relation to (what is taken to be) an authoritative understanding of symbolic meaning—the public status of symbols like the crucifix in Catholicism, the handshake in European classrooms, customary marriage in traditional Southern African cultures, or artificial koine languages such as in the case of the Rhaeto-Romansh in Switzerland. To be sure, cross-cultural conflict is not merely symbolic. It sometimes involves the collision of moral views and the way how disagreements on the public significance of cultural symbols are settled may greatly influence the distribution of non-symbolic resources such as class mobility or the economic prospects of encultured subjects on the job market. Yet, the invocation of symbolic meaning which, putatively, is constitutive of a cultural group, contributes a great deal to the complexity of cultural conflict in the context of pluralist liberal democracies. More particularly, the symbolic composition of culture and its ascriptive character4 entail complexities that are absent in conflicts between other types of groups, say, groups sharing electoral preferences or moral convictions. In the presence of liberal constitutional rights centering around individual autonomy, the analyst of cultural disagreement as well as the parties to it are barred from essentializing a cultural group by singling out a symbol (or a set of symbolic forms) that invariably identifies cultural membership or, in the case of disagreement, a “natural,” pre-­ defined stance in public discourse. Both the analyst of and the parties to cultural conflict are subject to a nonessentialism constraint, barring what James Tully once called the “billiard-ball” conception of culture (1995:

 Both in anthropology and in political theory, cultural membership is not usually seen as open-­ ended. See, for diverging accounts, Phillips (2007) and Abu-Lughod (1991). 4

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10).5 Cultural groups must, on pain of becoming objectionably sectarian and oppressive, be viewed as entities whose boundaries and symbolic meanings are porous, internally negotiated and therefore unavoidably political. Compromise recommends itself as a normatively appealing decision-­ making mechanism in cases of cultural conflict because it adequately caters to the liberal constraints of cultural pluralism and, more particularly, nonessentialism. I shall make two points about this claim. On the one hand, compromise does not require the parties to accept any substantive standard of rationality or public reason other than the acknowledgment that other symbolic systems—traditions, rituals, customs, and languages—possess a meaning which may not currently be intelligible given our available hermeneutical framework, but which may, in principle, be made intelligible by reciprocally adjusting existing frameworks. As I shall try to make clear, the political conception of culture that follows from the nonessentialism constraint offers sufficient grounds for thinking that encultured individuals possess the capabilities for enabling such a cultural “fusion of horizons (Gadamer 2004: 303).” On the other hand, compromise is congenial to the nonessentialism constraint also in a more direct sense, namely in that it accommodates patterns of intra-cultural dissent. Culture, on the account defended by the constraint, is not a reified, but a negotiated set of symbolic meaning. Public claims made in the name of culture (or cultural “interests”), therefore, are always reflections of intra-cultural distributions of power and, potentially, strategic agency. Cross-cultural deliberation aiming compromise can deal with the politics of culture more openly than deliberation aiming at consensus. For instance, a negotiation situation that refrains from excluding strategic agency from the realm of deliberation on a priori grounds may be more suitable to press cultural leaders to justify the legitimacy of dominant interpretations of “tradition.” Cultural compromise, it seems, incentivizes transparency on the normative quality of the procedures by which the claims and interests of culture have been brought about.

 There are first-order moral and empirical reasons for rejecting cultural essentialism. I shall briefly explain this in the next section. 5

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The remainder of this chapter is in five sections. I begin with a short discussion of the nature of cross-cultural conflict, arguing that compromise is a well-suited decision-making mechanism under conditions of deep symbolic conflict that leave only opportunities, but never guarantees, for the mutual understanding of the symbolic interests at stake. I also provide some clarifications of the nonessentialism constraint and seek to demonstrate that it invalidates more radical forms of cultural incommensurability which would be likely to subvert any form of cross-­ cultural deliberation, including deliberation aimed at compromise. In the following two sections, I discuss the conceptual presuppositions of cultural compromise in some detail. In Section 7.2 I seek to demonstrate the plausibility of the general premise that groups can be coherent political agents. In Section 7.3 focusing more narrowly on the political conception of culture which the nonessentialism constraint informs, I seek to demonstrate why cultural groups can be said to have the internal coherence required to act as compromisers. In pursuing this inquiry, I will rely on post-Parsonian semiotic anthropology. One of the key insights the semiotic anthropologist can offer to the compromise scholar, or so it seems to me, is that intra-cultural practices of compromising play a fundamental role in the construction and evolution of the meaning and public status of a cultural group’s dominant symbols. In Section 7.4 I address the question of the normative presuppositions of cultural compromise, arguing that its political authority hinges on whether the competing cultural interests originate in fair intra-cultural procedures. I discuss three different normative thresholds and conclude that all of them potentially infringe on the autonomy of cultural subjects. The last section concludes.

7.1 Cultural Incommensurability Disagreements arising from cultural difference frequently create anxieties of colliding fundamental goods that defy deliberation and conflict resolution using some shared framework of rationality. The language of “clashing civilizations (Huntington 1996),” “illiberal cultures (Okin 1999: 7–24),” or cultural “perspectivality (Benhabib 2002: 137)” and (therefore) intransigence in matters of cross-cultural conflict offers anecdotical

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evidence of this anxiety which, in a liberal-democratic context, translates into strong doubts that deliberation on the public status of rivalling cultural goods can yield anything close to stable solutions. The “relations of cultures constituted by uncombinable values,” as John Gray once said (1996: 113), involve tragic and agonistic competition “even when their formal relationship is one of peaceful coexistence.” Politically realist claims that the resolution of cross-cultural conflict must resign itself to modus vivendi arrangements that have no normative aspiration beyond reflecting the balance of power between the parties are a direct corollary of this view.6 Among political liberals and deliberative democrats in particular, anxieties of rationally irresolvable cultural disagreement originate in important ways in the conflation of cultural pluralism with value pluralism and the corresponding assumption of value incommensurability. Value incommensurability exists when two values “have different dimensions that cannot be reduced to one common dimension.”7 If the fact of cultural pluralism leaves no hope that competition between, say, the moral demands of Islam and Christianity regarding the slaughtering of animals can be rationally compared and arbitrated on a single dimension, any effort to settle this disagreement would unavoidably entail a zero-sum trade-off: to advance Islamic cultural interests would mean to harm Christian interests in the same magnitude and vice versa. Consequently, if we accept that cultural pluralism is at least partly reducible to value pluralism, the prospects for a principled compromise over such a disagreement are dire: the use of reason as well as any other substantive arbitration principle won’t yield a determinate choice. I agree with Martijn Boot’s argument (in this volume) that the lack of commensuration between two values therefore significantly undermines the justifiability of compromise. If value pluralism constrains rational comparability, “the achieved compromise will always contain a significant element of arbitrariness” and principled aspirations to finding an Aristotelian  Chandran Kukathas’s claim that cross-cultural toleration is the only conceivable normative foundation for social unity brings him close to this position. Note, however, that Kukathas denies that toleration merely amounts to a modus vivendi settlement (1997: 84). 7  Martijn Boot’s Chapter in this volume, p. 130. 6

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Mean and a Right Balance are logically inconsistent in presence of cultural conflict.8 However, the conflation of cultural pluralism and the radical value pluralism going back to Isaiah Berlin is problematic for a variety of reasons.9 Many instances of cultural conflict which trouble political liberals do not seem to involve value incommensurability at all or are only contingently related to it. A case in point is the struggle of linguistic minorities for constitutional recognition, which does not usually involve a collision of moral beliefs, but rather conflicting understandings about the meaning and status of symbolic forms for shared higher-order principles such as individual autonomy or self-ownership. Thus, what should worry the political liberal about cross-cultural conflict is not so much value incommensurability, but incommensurability between different frameworks of symbolic understanding. Call this view—which has a pedigree going back to Johann Gottfried Herder and the German Romanticists—semantic or hermeneutical incommensurability. As Richard Bernstein once remarked (2010: 387), the “specter haunting multiculturalism” is the view of cultures as “windowless monads” that are “so self-enclosed that there is no real communication, no real point of contact between them.”10 For Seyla Benhabib (2002: 137), what triggers sentiments of semantic incommensurability is the social positionality of culture, the view that cultural identification “creates a certain perspective on the world that is incompatible and asymmetrical with the viewpoint of those who have never occupied this position.” The absence of a shared framework by which the parties to cultural conflict can make sense of the stakes underlying their disagreement would, by hypothesis, be as damaging to the prospects of deliberative conflict resolution as value incommensurability. The defense of compromise as a decision-making mechanism in the presence of cultural disagreement must therefore also overcome the challenge of hermeneutical incommensurability.

 Martijn Boot’s Chapter in this volume, pp. 133–134.  See for example, Levy (2000: 102–105). 10   Note that Bernstein rejects strong incommensurability, a view which he attributes to Thomas Kuhn. 8 9

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Fortunately for the advocate of cultural compromise, hermeneutical incommensurability can be shown to be a starting point rather than an obstacle to compromise. Two considerations are in order. First, extreme forms of hermeneutical incommensurability appear to be self-defeating. They subvert the very conditions of mutual understanding that are minimally necessary to ascertain the symbolic structure (and the resulting potentiality of conflict) of the opposite party. As Benhabib aptly remarks (2002: 30): Radical incommensurability and radical untranslatability are incoherent notions, for in order to be able to identify a pattern of thought, a language—and, we may add, a culture—as the complex meaningful human systems of action and signification that they are, we must first at least have recognized that concepts, words, rituals, and symbols in these other systems have a meaning and reference that we can select and describe in a manner intelligible to us—as being concepts at all, for example, rather than mere exclamations.

If cultural incommensurability were indeed so extreme, it would not be clear how we could actually have the conceptual schemes to even recognize the other culture as an entity with divergent symbolic content. Second, and more importantly, for strong hermeneutical incommensurability to make sense at all, we need to assume a static culture conception that violates the nonessentialism constraint sketched at the outset of this chapter. For, to insist that cultures are closed and radically untranslatable horizons would seem to imply that cultural identification means being imprisoned in an easily delineable and internally uncontested social context that remains shielded from outside interference. This understanding of culture as impenetrable and reified “billiard-balls” was common until the final quarter of the twentieth century. James Tully (1995: 7–14) traces this view back to seventeenth- and eighteenth-century contractarianism and sees in it a symptom for liberal constitutionalism’s “failure” to account for the “multiplicity” of cultural frameworks and their “overlapping,” “interactive” and “internally negotiated” character. Three assumptions meet in the billiard-ball conception of culture which, conjointly or taken separately, are commonly referred to as essentialist (Mallon

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2007: 148). The first assumption states that sharing a culture C means sharing a set of distinct properties—symbolic traits, narratives, and formative conditions—that do not overlap in a significant way with other cultures and that unambiguously make C the culture it is. The properties of C, in other words, are seen as individually necessary and jointly sufficient for C’s existence as a discrete empirical fact. The second assumption implicit in the billiard-ball conception takes C’s distinctive properties to be ahistorical, non-relational features of C’s members. Not only are C’s properties individually necessary and jointly sufficient for making C the culture it is, they are also “natural” characteristics that hold independently of social continuity and human agency. Finally, and perhaps most crucially, the billiard-ball conception assumes that C’s properties are internally uncontested and therefore largely apolitical. On this view, there is a stable intra-cultural agreement over the significance of C’s distinctive symbolic properties. The interests of the members of C are thought to be homogeneous with respect to the authoritative interpretation of cultural properties. The billiard-ball conception is now widely discredited for its empirical implausibility and for restricting norms of individual autonomy and equality. Empirically, hardly any group of people that think of themselves as sharing a cultural identity resembles it. Cultures are living horizons; their symbols and customs do not “spring into being spontaneously (Carrithers 1992: 9),” but are part of a narrative, “of an unfolding story (ibid: 82).” The normative concern that motivates those who endorse the nonessentialism constraint—Rawlsian liberals, feminists, and postcolonial scholars alike—is that any policy grounded in a presumption of intra-cultural homogeneity would be oppressive to members whose interests and life plans diverge from the “official,” authoritative position.11 The upshot of this discussion is that the threat of hermeneutical incommensurability to compromise evaporates once we replace the essentialist billiard-ball conception of culture with what I shall henceforth call a political conception,12 which sees the symbolic content of culture as overlapping, porous, and ever-negotiated. The horizon of encultured subjects 11 12

 See e.g. Kukathas (1997: 132–53); Phillips (2007).  I will further elaborate on the political conception in Sect. 7.3.

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may be finite, but never cast in stone. The political conception of culture does not deny deep symbolic conflict—it does not foreclose the possibility of long-enduring symbolic stability after all—but sees it as a challenge to be overcome. What it however denies is that there are a priori obstacles that prevent people from acquiring, if only provisionally and incompletely, the hermeneutical resources required for making at least some rough sense of unfamiliar symbolic meaning. Unlike the billiard-ball conception, the political conception that derives from the nonessentialism constraint tells the hypothetical cultural fundamentalist that by refusing to treat the opponent as a hermeneutical peer, as somebody who is owed recognition as an equal participant in the challenge of overcoming barriers of mutual incomprehension, she betrays the very way how culture works. To the extent that the political conception evinces that all cultural horizons are always in the making, and that one’s current lack of hermeneutical resources to grasp the symbolic world of the other is never immutable, but rather a challenge that can be overcome, it offers the parties to cultural conflict a reason to make their frameworks “common enough” to understand the rough dimensions of the conflict (Bohman 1996: 91). The linkage between a dynamic conception of interpretive frameworks and the overcoming of hermeneutical incommensurability is of course indebted to what Hans-Georg Gadamer’s famously called a “fusion of horizons”: The historical movement of human life consists in the fact that it is never absolutely bound to any one standpoint, and hence can never have a truly closed horizon. The horizon is, rather, something into which we move and that moves with us. Horizons change for a person who is moving. (2004: 303)

The nonessentialism constraint and the culture conception it commends make the “fusion of horizons” a plausible outcome of symbolic disagreement. Once the parties have successfully established an interpretive space sufficiently common to reciprocally understand the symbolic interests are at stake, they defeat the specter of hermeneutical incommensurability, enabling deliberation aimed at negotiation and compromise. The internal complexity of cultural groups, in other terms, is not an

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obstacle to cross-cultural deliberation, but rather an incentive to provide, as Richard Bellamy puts it (1999: 105), “the cross-cutting levels of commonality and difference needed for the trade-offs, bartering, log-­rolling and so on crucial to negotiated agreements.”13 It is important, however, to note that creation of a common hermeneutical horizon is a necessary, but in no way a sufficient condition for cultural compromise. If the political conception of culture originating in the nonessentialism constraint makes the fusion of horizons a possibility, it also makes culture—potentially—a site of politics and strategic agency. At least one crucial question persists: how can the conflicting symbolic interests be said to be cultural interests and not merely private interests in a “culturalist” guise? In other words, how can one ascertain whether the cultural interests put forth are indeed authoritative for the cultural group qua group, or whether they merely reflect partisan views of some decisive community members, say, of traditionalist leaders, cultural entrepreneurs, or socio-economic elites? Clearly, the latter cannot be tolerated if cultural compromise is conceived as the correlate of cultural communities that treat one another as hermeneutical peers. If a cultural compromise is to be compatible with the basic norms of liberal freedom, it must deal with the awkward possibility that the very conception of culture that enables it allows for the possibility that the symbolic interests invoked in a political negotiation process may be artefacts of intra-cultural power asymmetries. Fair cultural compromise, in other terms, requires a procedural criterion for the legitimacy of intra-cultural politics. I will return to this problem in Section 7.4 Another complication of the political conception of culture is of a conceptual kind: claiming that cultural groups qua groups can act as compromisers in a full-blown sense forbids totalizing the nonessentialism constraint: if the term “cultural compromise” is to have any political meaning at all, the assumption (flowing from the constraint) that cultural meaning is always negotiated and internally contested must not be taken to undermine the assumption that cultures are sufficiently coherent agents. In the next section, I briefly elaborate on why the assumption that groups possess agency is not a trivial one. The subsequent section will 13

 See also Bohman (1996: 105).

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then turn to cultural groups in particular and clarify why cultural groups can be said to act as coherent agents in deliberations aimed at compromise.

7.2 The Problem of Group Agency The main motivation underlying the nonessentialism constraint is to do away with false fixities and to view culturally justified positions as products of internal processes of negotiation. But nonessentialists who are unwilling to surrender the idea that a culture can be a political agent must demonstrate how such an internally complex entity can be said to have any coherent position in the first place.14 Political theorists operating with a vocabulary of “irreducibly social goods (Taylor 1995: 135–37)” or “group rights (Kymlicka 1995: 27–30)” have not given the problem of group agency an appropriate level of concern. Some important insights on the underlying complexities can be taken from legal philosophy. It is an established principle that to ascribe rights to a group requires that we ascribe agency to this group (Raz 1986: 176; Hartney 1991: 294). On this account, if the group does not exhibit a certain degree of concurring interests, solidarity, and formal organization, it cannot be said to have a moral standing that qualifies it as a bearer of rights. Legal and political theorists have put forward varying conceptual thresholds of internal coherence that must be met if groups are to count as agents (and therefore qualify as right-holders). Suggestions for such criteria range from the presence of “collective interests (Raz 1986: 208),” “sentience (Kymlicka 1989: 241–42),” “intentionality (French 1984: 35–38),” “shared normative understandings (MacDonald 1991: 218)” to strong notions of “solidarity (Galenkamp 1993: 101–12).” Peter French’s account of corporations is among the most explicit defenses of the extension of individual agency (and, by implication, moral personality) to groups: Corporations are not just organized crowds of people, (…) they have a metaphysical-logical identity that does not reduce to a mere sum of human  See for example Patten (2011: 735–49).

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members. (…) I hope to provide the foundations of a theory that allows treatment of corporations as full-fledged members of the moral community, of equal standing with the traditionally acknowledged residents: human beings. (1984, 32, emphasis added)

French’s position assigns to corporations—his model example is the Gulf Oil Corporation—a holistic moral personality whose agency is unified to the extent that it does not alter with changes in the corporation’s membership structure. The central element in French’s argument that fleshes out the moral significance of corporate “identity” thus understood is the claim that corporations, by virtue of their having an “internal decision structure (ibid: 44)” possess a non-reducible intentionality. To be the subject of an ascription of moral responsibility, to be a party in responsibility relationships, hence to be a moral person, the subject must be at a minimum an intentional actor. If corporations are moral persons they will evidence a noneliminable intentionality with regard to the things they do. (Ibid: 38)

It is the aggregation of individual intentionality through formalized procedures of coordination which establishes unified group intentionality. French’s insistence on the formal, proceduralist transformation of individual-level intentionality into group-level intentionality is premised on the faith in the human capacity to create—by means of successful coordination—institutional equilibria that are stable enough to ground rights and duties. Granted that successful coordination is the raison d’être of the Gulf Oil Corporation’s capacity to act intentionally qua corporation, the question remains whether similar equilibria can reasonably be expected to occur in this coherent form in a non-corporate context such as in a cultural group. For even if we accept that the presence of group-­ level intentionality is a sufficient condition for making a group a proper agent, what entitles us to be so positive that the aggregate of all individual intentionalities will eventually converge on a determinate equilibrium? Rational choice theorists raise a red flag: they object that such functionalist ideals overlook the political agency that is unavoidably involved when individuals act together under circumstances of incomplete

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information (Hardin 1995: 34–37, 56). For Russell Hardin, there is no determinacy to be had in the constitution of group intentionality.15 The “achievement of community,” Hardin argues, is all too often “subject to great distortion from the corrosions of self-interest mechanisms, such as those that feed norms of exclusion (ibid: 216–17).” Any normativization of community, Hardin argues, is premature as long as it cannot be shown that community-establishing processes of coordination do not entail “malign correlates of exclusion (ibid: 217),” which are “enforced when there is asymmetric demand for the benefits of membership in a group (ibid: 106).” The important point to make against positions that hold collective intentionality—or whatever term may be employed—to be sufficient conditions for the establishment of free-standing group agency is their lack of consideration for the potential problems of strategic interaction. If we accept the objection that collective action tends to create incentives for strategic manipulation and, as history has too often taught us, for violence and atrocities, then there seems to be little plausibility in the assumption that the sort of conceptual coherence found in the Gulf Oil Corporation can simply be taken for granted.

7.3 The Political Conception of Culture Is there any hope that cultural communities can achieve a sufficient degree of coherence so that the claims they make on each other can lend themselves to compromise-making? Given the conceptual openness that follows from the nonessentialism constraint, one might suspect that no cultural practice, tradition, or custom will ever acquire the determinacy required to form a meaningful position in deliberation. However, that impression is misplaced. In fact, the particular way how culture works gives the advocate of compromise a powerful rejoinder to the rational

 Jack Knight and Jim Johnson (2011: 2, 43) make the same point regarding the indeterminacy of institutional arrangements, which are “indeterminate in the sense that they represent arbitrary outcomes of strategic interactions (…) [and] insofar as the individuals and groups for whom they are relevant will differ over time about what the rules mean, whether and when they are being followed or breached, who is to decide such matters.” 15

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choice critique of group agency. To see this, it is helpful to turn to the political conception of culture of Princeton anthropologist Clifford Geertz. A central thread running through Geertz’s work was the rupture with the positivist anthropology of Talcott Parsons, which aspired to infer law-­ like patterns from symbolic constellations seen as largely static states of affairs. For Geertz, the main problem with this approach is that it misrecognizes the semiotic character of culture. If culture is a construct of symbols that people invest with meaning, then a proper understanding of culture requires a hermeneutic perspective and, therefore, a disposition that sees the individual not merely as a receptor of symbolic force, but as a pivotal agent in its constitution, interpretation, and recreation. Culture, Geertz argues, is a hermeneutical phenomenon; its constitutive symbols are not given a priori. Rather, symbols are real parts of our every-day experience, ever-exposed to the interpretative power of our minds, unsheltered from redefinition and contestation. These elements are nicely captured in the following phrase: The concept of culture I espouse, (…) is essentially a semiotic one. Believing, with Max Weber, that man is an animal suspended in webs of significance he himself has spun, I take culture to be those webs, and the analysis of it to be therefore not an experimental science in search of law but an interpretive one in search of meaning. (Geertz 1973: 5, emphasis added)

Symbols are not merely determining human behavior; their normative force is itself contingent on human acts of interpretation. Being self-­ interpretive “animals,” all we have is culture in the making, accessible only through the hermeneutical study of the interplay between symbolic power and symbolic construction. Culture, on this account, is by its very functioning a site of politics. Its customs and values embody an unstable equilibrium between being “suspended” in and “spinning” webs of significance. Rather than being a “‘super-organic’ reality with forces and purposes of its own (Geertz (1973: 11),” culture evolves in a process that is periodically disrupted by political contests for authoritative meaning. It is this continuous oscillation between situations of symbolic

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indeterminacy and struggle for symbolic control which, for Geertz, marks the complexity and the political brisance of the semiotic view of culture. The possibility that people may attach diverging or conflicting meanings to a given symbol involves a latent degree of uncertainty, imprecision, and ambiguity with regards to the public status of this symbol. Post-Parsonian anthropologists were at pains to show that the attribution of meaning to symbols is neither merely a problem of semantics nor an apolitical manifestation of emotional or psychological connections. Rather, they have observed that the uncertainty and ambiguity surrounding symbolic meaning constitutes strong incentives for agents to deploy strategic power in the aim to make symbols “fit their circumstances (Cohen 1985: 18)” and, indeed, to “affect the behavior of others (Firth 1973: 84).” Symbols are “triggers of social action […] and of personal action in the public arena (Turner 1975: 155).” Symbolic constructs such as religious scripture, linguistic speech norms, memory of ancestors, diplomatic usage, or aesthetic norms can be invoked to legitimize a specific social order, say, to discriminate between “good” and “bad” practice, or to draw the boundaries between “us” and “them.” Symbolic constructs coordinate social action by “foreclosing or disclosing” possibilities for agency (Johnson 2000: 412).16 This makes the assignment (or invention or recasting) of symbolic meaning and the struggle for prerogatives of interpretation a matter of seeking control over others and, therefore, an instance of political power. The political conception of culture accepts that the members of a cultural community oscillate between moments of being “suspended in” and moments of “spinning” webs of significance. To see why this seemingly unavoidable symbolic indeterminacy need not drive the possibility of a positive conception of culture ad absurdum, it is helpful to point out the philosophical affiliation of the political conception with the pragmatist naturalism of John Dewey.17 Like Geertz, Dewey regards culture as a

 Note that for Johnson, the strategic dimensions of culture are an unbridgeable obstacle to normative uses of culture such as in the context of multiculturalism. See also Jung (2008). 17  Given that Geertz was, as he would say himself, a deeply admiring student of George Geiger— Dewey’s last graduate student at Columbia and a fervent advocate of his philosophical heritage— this is hardly a coincidence. See Geertz (2001). 16

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complex and inherently political site of continuously evolving situations of habitual “rigidity” and impulses of discontinuity: The more complex a culture is, the more certain it is to include habits formed on differing, even conflicting patterns. Each custom may be rigid, unintelligent in itself, and yet this rigidity may cause it to wear upon ­others. The resulting attrition may release impulse for new adventures. (1922: MW 14: 90)

For Dewey, culture is the horizon in which people learn to transform old, troubled experience into a new, more balanced experience. Dewey believes that each time when some experience a “rigid” cultural symbol as dated, irritating, or unjust, an experimental process will be started which the parties aim to settle the hermeneutical conflict. Culture is thus understood as continuity of moments of creative problem-solving in which people try to overcome the disruption from symbolic contestation and to reach a new equilibrium, a new state of symbolic determinacy. This continuous oscillation between what Dewey calls “doings” and “undergoings (1929: LW 4: 66)”—periods of shaping and periods of depending on webs of significance—adequately fits the Geertzean conception of culture. Indeed, there is extensive evidence from empirical anthropology  indicating that intra-cultural equilibrium positions on symbolic meaning often take the form of a compromise between dissenting hermeneutical positions. Such intra-cultural compromise emerges, for instance, when an initially contested symbol becomes polysemic: a set of very different views can thus find their own meanings in what nevertheless remains a common symbol (Cohen 1985: 18), and despite the prevailing intra-cultural disagreement, that symbol can therefore be thought to be authoritative for a broad spectrum of intra-cultural positions. A classical example for evidence that long-standing intra-cultural conflict may result in differentiated symbolic meaning depending on context is Victor Turner’s life-long research on the polysemic character of ritual symbols among the Zambian Ndembu (1967). Michael Carrithers, in his study about the reciting of the Buddhist Aggañña text over the last 2400 years, describes how subjects deploy complex dialogical procedures to “permute” old meaning into new symbolic realities using means of

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hermeneutical creativity, social intelligence, and narrative thought. The “metamorphic character of human experience,” Carrithers observes, “[allows] people to act with an awareness of the flow of action in which they are immersed (1992: 9, 146).” More recently, in his study on the Islamic diaspora in contemporary France, John Bowen highlights the disposition of French Islamic public actors—Imams, Islamic school teachers, theological consultants, and so on—to engage in “socially pragmatic forms of reasoning within the Islamic tradition” in the aim of legitimizing “practices that may be innovative in their specific form (Frenchlanguage sermons, home loans at interest, civil marriage taken as already Islamic) but that extend to French Muslims the guarantees and the benefits already enjoyed by fellow Muslims living in societies with a broader range of Islamic institutions (Bowen 2010: 197, emphasis added).” Such pragmatic modes of reasoning are solutions achieved through compromises between traditional and present realms of justification, between—to use Geertz’s terms again—acts of being suspended in and acts of spinning particular webs of significance. It seems, therefore, that the claim that we are cultural beings, “thrown (Young 1989: 260)” and raised in linguistic, ritual, or aesthetic webs of significance is at least in principle compatible with the claim that these webs are politically constituted. To conclude that culture is not capable of coherent agency in public debate merely because of its internal contestedness would thus seem to overlook the historical capacity of cultural communities to settle symbolic dissent, if only imperfectly and provisionally. It is the capacity to continuously challenge and renegotiate symbolic meaning that makes culture a coherent agent in spite of the nonessentialism constraint.

7.4 T  hree Approaches to the Authority of Cultural Compromise Some might object that this is an unacceptably naïve conclusion. Perhaps, a skeptic might admit, the political conception solves the conceptual problem of group agency under the nonessentialism constraint; but that is not the same as saying that any symbolic equilibrium, once achieved,

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must be given political consideration in a liberal democracy. To be sure, it is not difficult to demonstrate that subsets of community members sometimes seek to assert the public validity of a symbol unilaterally, say, by oppressing dissenting views and by enforcing some putatively “pure” or “authentic” understanding.18 A notorious example is Susan Okin’s claim that a culture ceases to have public worth if it endorses practices (such as clitoridectomy or the coerced marriage of children) that subordinate girls and women to men. According to Okin, if a patriarchal minority culture is surrounded by a “less patriarchal majority culture,” it would be “in the best interests of the girls and women” if such a culture were “to become altered” or even “to become extinct” so that “its members would become integrated into the less patriarchal surrounding culture (Okin 1999: 22–23).”19 The moral evils Okin discusses offer evidence that the political conception of culture may dramatically fail to generate symbolic understandings that all subgroups would accept were they to choose as autonomous individuals. Intra-cultural struggles for symbolic control often go at the expense of the most vulnerable members of a community, and it would seem reprehensible for a liberal democracy to accept such false cultural “interests” as legitimate positions at the political negotiation table. Given that there is no a priori certainty that the political conception of culture will bring about symbolic meaning that works to the benefit of all subgroups, advocates of cultural compromise face a considerable burden of judgment. From a normative standpoint, it appears that additional constraints must be added to ensure that the formation of cultural interests is not merely a derivative of the private interests of a class of dominant interpreters. Three different lines of reasoning are available to determine the normative admissibility of cultural claims in liberal politics. First, one might respond to Okin’s negative conclusion by arguing that a culture that rationalizes forms of oppression on some of it symbolic traits, but not on others, may retain a right to political inclusion of a pro tanto sort. Several of Okin’s commentators have taken such a stance, criticizing the move to single out one distinct problematic feature of a 18 19

 See e.g. Appiah (1994: 149–64); Rorty (1994: 152–66).  See also Shachar (1998).

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culture and take it as undermining the public validity of its unproblematic features. As Bonnie Honig remarks in her reply to Okin, “even those who are least empowered in a certain [cultural] setting may have some measure of agency in that setting (1999: 39–40).” Similarly, it has been argued that the mere empirical existence of disagreement about the symbolic content of a culture does not render identification with that culture impossible per se.20 A second approach would be to require that the claims of culture are owed inclusion in the political sphere only if they are minimally compatible with political liberalism broadly understood as embodying a concern for individual autonomy. Will Kymlicka seems to defend a version of this claim. For him, the fact that a culture endorses illiberal practices does not license its assimilation into the (more liberal) majority society; reciprocally, however illiberal cultures have no right to be shielded from external pressures for reform: “liberals should not prevent illiberal nations from maintaining their societal culture, but should promote the liberalization of these cultures (Kymlicka 1995: 94–95).” This may translate, for example, into the provision of policies that guarantee cultural exit-rights and protect individuals who have chosen to change their cultural way of life against retaliation from their old communities.21 A third approach would impose the even stronger requirement that cultures be open to settle their internal disputes using democratic decision-­making procedures. In effect, this approach demands that the challenge and renegotiation of symbolic meaning (discussed in the previous section) has to live up to the same standards of democratic legitimacy than any other kind of public decision-making. For the political conception of culture, this means in particular that its public status will not only depend on the conceptual coherence of its symbols, but also on the procedures by which that symbolic determinacy has been brought about.22 Monique Deveaux takes this view in her study of the intercultural  As Matthew Festenstein puts it (2005: 28, original emphasis), “disagreement about the content of a cultural identity, even in its most persistent and political forms, (…) does not imply that there is nothing for competing views on an identity to be views of, or that no view is better than any other.” 21  See e.g. Jeff Spinner-Halev (2004). 22  It is not hard to see that the constraint for internal democratization may entail an important loss of self-determination especially for traditional communities. See for example Bohman (1996: 146). 20

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negotiations leading up to the 1998 South African Customary Marriages Act (Deveaux 2004: 340–62).23 Drawing on successful mediation of civil (Christian) and traditional understandings of marriage in South Africa, Deveaux advocates an “amended” proceduralist model of political deliberation which explicitly endorses methods of political negotiation and compromise. Constrained by norms of “non-domination,” “political equality,” and “revisability,” these methods offer, according to Deveaux, a unified political framework for settling disputes about contested cultural practice both internally (at the level of culture) and externally (at the level of the larger society). Negotiation and compromise “lend themselves better to discussion and decision-making that openly acknowledge participants’ strategic interests without necessarily privileging or catering to those interests (Deveaux 2004: 349).” A detailed examination (not to mention a conclusive ranking) of these normative thresholds for intra-cultural conflict would require a discussion of the complex relationships between individual autonomy, group identification, and political legitimacy. That undertaking is beyond the scope of this chapter. However, I agree with Deveaux that a substantial part of the appeal of democratic compromise under circumstances of cultural pluralism lies in its respect for the irreducibly political way how cultures work internally and externally in interaction with each other. Externally, as I have argued above, compromise is a suitable method in the presence of deep cultural conflict; internally, as anthropologists teach us, compromising on symbolic meaning appears  to be a fundamental feature in the making of culture. Where intra-cultural power asymmetries lead to morally objectionable outcomes, a negotiation procedure that does not depend on pre-political notions of rationality or moral consensus, but unabashedly affirms the politics of culture, will make it more likely that the dominant interpreters will have to reveal their real interests or admit that their interpretation of a symbol is bound to dominate others in the disguise of culture or tradition.

 The South African Customary Marriages Act is a product of a series of deliberative hearings, set up after the end of Apartheid, involving traditional leaders of the Zulu, Xhosa and Sotho peoples as well as legal reform and women’s right activists. 23

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7.5 Conclusion I have argued in this chapter that the idea of compromise is well-suited to the kind of disagreement prevailing under circumstances of cultural pluralism. Compromise explicitly acknowledges the unavoidably political nature of disagreements surrounding symbolic meaning both between and within cultures, and it does so without making strong assumptions on public reason or other forms of normative consensus. However, an important difficulty with cultural compromise lies in its conceptual and normative presuppositions. The nonessentialism constraint bars the analyst from viewing culture as a reified repository of values and customs. This requires that the parties to compromise-based cultural agreements be viewed as loosely bounded and internally negotiated, yet nevertheless capable of public political agency. I have argued, drawing on post-­ Parsonian anthropology, that culture possesses the sort of agency required for cultural compromise. It is a different (and yet unanswered) question whether a sound cultural compromise requires that cultural groups must be organized democratically. But what can be said in the light of the political conception of culture is that, minimally, the prospect of compromise in pluralist context requires awareness of the centrality of power and its potentially asymmetric distribution when cultural communities define their constitutive symbolic traits and their negotiability in public discourse. However, a major obstacle to the monitoring of intra-cultural power relations is the fact that symbolic contestation often does not take place in public political arenas, but occurs less visibly and often informally between cultural elites and their opponents. If compromise-making means that the parties must determine the “red lines” and thresholds of group integrity, any failure to account for the role of dissenting members within cultural groups jeopardizes the normative legitimacy of cross-cultural arrangements.

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Patten, A. (2011). Rethinking Culture: The Social Lineage Account. American Political Science Review, 105(4), 735–749. Phillips, A. (2007). Multiculturalism Without Culture. Princeton: Princeton University Press. Raz, J. (1986). The Morality of Freedom. Oxford: Oxford University Press. Rorty, A.  O. (1994). The Hidden Politics of Cultural Identification. Political Theory, 22(1), 152–166. Shachar, A. (1998). Group Identity and Women’s Rights in Family Law: The Perils of Multicultural Accommodation. Journal of Political Philosophy, 6(3), 285–305. Spinner-Halev, J. (2004). Autonomy, Association and Pluralism. In J. Spinner-­ Halev & A. Eisenberg (Eds.), Minorities Within Minorities: Equality, Rights and Diversity (pp. 157–171). Cambridge: Cambridge University Press. Taylor, C. (1995). Philosophical Arguments. Cambridge: Harvard University Press. Tully, J. (1995). Strange Multiplicity: Constitutionalism in an Age of Diversity. Cambridge: Cambridge University Press. Turner, V. W. (1967). The Forest of Symbols: Aspects of Ndembu Ritual. Ithaca: Cornell University Press. Turner, V.  W. (1975). Symbolic Studies. Annual Review of Anthropology, 4, 145–161. Weinstock, D. (2017). Compromise, Pluralism, and Deliberation. Critical Review of International Social and Political Philosophy, 20(5), 636–655. Young, I. M. (1989). Polity and Group Difference: A Critique of the Ideal of Universal Citizenship. Ethics, 99(2), 250–274.

8 Militant Consociational Democracy: The Political Exclusion of the Extreme Right in Belgium Matthijs Bogaards

8.1 Introduction Belgium has been called an “exemplary” consociational democracy (Seiler 1997).1 Lijphart (1981: 8) goes even further, regarding Belgium as “the most perfect, most convincing, and most impressive example of consociation”. In contrast, Belgium does not have the reputation as militant democracy it deserves. Although Loewenstein (1937a, b) already mentioned interwar Belgium in his pioneering work on militant  Earlier versions of this paper were presented in the workshop on How Do Compromise and Democracy Get Along?, University of Lausanne, Switzerland, April 26–27, 2018; the conference on Diversity and Democratic Governance: Legacies of the Past, Present Challenges, and Future Directions?, organized by IPSA RC14 Politics and Ethnicity in Sarajevo, Bosnia and Herzegovina, June 12–15, 2019; and the Department of Political Science at the University of Antwerp, October 11, 2019. The author thanks all participants, and especially Nenad Stojanović, for their helpful comments. 1

M. Bogaards (*) Department of Political Science, Central European University, Budapest, Hungary e-mail: [email protected] © The Author(s) 2020 S. Baume, S. Novak (eds.), Compromises in Democracy, Palgrave Studies in Compromise after Conflict, https://doi.org/10.1007/978-3-030-40802-2_8

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democracy and Capoccia (2005) discusses the case of Belgium as a successful defense of democracy against anti-system parties, other contributions on militant democracy have tended to leave Belgium out (see, e.g., Thiel 2009; Tyulkina 2015).2 The reason most likely is that militant democracy in Belgium does not resort to party bans, the focus of much of the literature, but relies on political behavior: a united front of mainstream parties against extremists embodied in systematic and sustained non-­cooperation with them. This is true for the interwar period and for contemporary Belgium, where the Flemish (Flemish Interest) and francophone (National Democracy)  extreme-right  parties have been consistently ostracized (Van Spanje 2010).3 Indeed, Belgium now has “what may be the democratic world’s most explicit and enduring cordon sanitaire” (Downs 2012: 85). The combination of these two features, inclusion and compromise across the linguistic divide and exclusion of the extreme right, makes Belgium a case of what is called here “militant consociational democracy”.4 This chapter analyzes how the principles of inclusion and exclusion and the practice of consociational and militant democracy have evolved in Belgium. The next section summarizes the history of consociationalism in Belgium. The subsequent sections review the literature on militant democracy, the Belgian experience with the cordon sanitaire, and the anti-system character of Flemish Interest. This is followed by a history of militant democracy in Belgium and a discussion of the evolution of norms of inclusion and exclusion. The conclusion highlights the  Belgium is also not covered in Fox and Nolte’s (2000) influential overview and typology of intolerant democracies. Bourne and Casal Bértoa (2017: 236) place Belgium in the category of activist procedural democracies, together with the Czech Republic and Slovakia. 3  All translations from Dutch and French are by the author. Both extreme-right parties have changed their name: the Vlaams Blok is now Vlaams Belang and the Front National is currently called Démocratie Nationale. This chapter  uses the latest English version of these party names, Flemish Interest and National Democracy respectively, throughout. 4  This paradox is also visible in Downs (2002: 38) notion of “blocking coalitions”, described as “‘grand coalitions among most or all of the established parties to exclude the far right from any share of executive authority”. In other words, an exclusive grand coalition! One example comes from the city of Antwerp, where the victory of Flemish Interest, still falling short of a majority, forced an exclusive grand coalition consisting of an “uncomfortable amalgam of Socialists, Liberals, Christian-Democrats and ecologists” (p.  40). Jacoby (2017) calls this the “sterilization” logic of grand coalition, one of three reasons for forming a grand coalition. 2

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relevance of the Belgian case for contemporary debates in the consociational literature about the inclusion of “others” and the formation of proportional executives.

8.2 Consociationalism in Belgium Consociationalism was developed by Lijphart (1968, 1969, 1977) as a theory of political stability in plural societies. Lijphart posits that democracy and social peace can be secured in deeply divided societies if elites engage in accommodative behavior and forsake centrifugal competition in a self-negating prediction. The political features of consociational democracy are government by a grand coalition of segmental elites; a proportional electoral system and proportionality in the allocation of jobs and other resources; segmental autonomy—territorial and/or functional; and a mutual veto—implicit or explicit. The proto-typical West European consociational democracies are, or were, the Netherlands, Belgium, Switzerland, and Austria.5 Zolberg (1978: 117) already detects consociational elite behavior around the time of independence in 1830, but more commonly Belgium is seen as a consociational democracy since the end of World War 1 (WW1), though “consociational practices developed hesitantly during the interbellum-period” (Andeweg et  al. 2008: 81). Before the 1960s, Belgian politics and society were divided by ideological and religious cleavages, resulting in liberal, socialist, and catholic political parties heading their “familles spirituelles” (Huyse 1970). The political conflicts of this period culminated in the so-called “School pact” of 1958, which granted public money to private (catholic) schools. This pact marked the final accommodation between secular and religious forces in Belgium (Dunn 1972). Since then, the “consociational responses to the old societal divisions have been deeply institutionalized” (Deschouwer 2009: 9).  See the special issue of the Swiss Political Science Review (25/4, 2019) on “Half a Century of Consociationalism: Cases and Comparisons”, edited by Matthijs Bogaards and Ludger Helms. 5

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During the 1960s religion was replaced by language as the dominant cleavage. “What happens to a consociational system when an emerging cleavage becomes or threatens to become more salient than the old institutionalized cleavages of the consociational system?”, asks Dunn (1972: 6). The answer is: more consociationalism. Belgium has “transformed from a unitary consociation to a federal consociation” (Caluwaerts and Reuchamps 2015: 280). Deschouwer (2006) views the constitutional reform of 1970 as a turning point, introducing a number of consociational devices that promote compromise. First, every member of the national parliament now belongs to a Dutch-speaking or French-speaking group. As a consequence, “representatives are supposed to represent their own language group” (Deschouwer 2006: 902, emphasis in original). To make important decisions, the consent of both language groups is needed. Constitutional reform needs a double majority of two-thirds of Members of Parliament (MPs) overall and more than half in each language group. If a quarter of MPs of a language group consider their vital interests threatened by a proposed policy, they can trigger the alarm bell procedure, which suspends debate and asks the government to come up with a solution within 60  days. Finally, Belgian cabinets need to contain an equal number of francophone and Dutch-speaking ministers. Add to this the increasing federalization of the country, with competences delegated to the territorial units and language communities, and the picture of consociationalism is complete, with evidence of all four principles of grand coalition, proportionality, mutual veto, and segmental autonomy. Belgium today is more consociational than ever.

8.3 Militant Democracy Militant democracy has enjoyed a “renaissance” (Müller 2016: 251). According to Cappocia (2013: 214) “the recent comparative constitutional law literature on militant democracy has converged on the principle that democracies have a right to defend themselves against their enemies, even in the absence of violence”. Who are these enemies of democracy? The recurring example of Weimar Germany and the experience

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of militant democracy in post-war Germany have established a firm connection between party prohibitions and three themes identified by Issacharoff (2015: 120): “the immediacy of perceived harm, the link to illegal activity, and the generalized antidemocratic commitment of the party to be proscribed”. However, “this paradigmatic ground for banning parties—wholesale rejection of democracy, whether framed generally or in regard to specific ideological movements—appears to be losing its relevance in recent decades” (Bligh 2013: 1335). Instead party bans have targeted three groups of parties: those that incite hate and discrimination, those that support violence, and those that pose a challenge to the state’s identity. Bligh (pp. 1339–1340) mentions the conviction of Flemish Interest (see below) as an example of the first category. Under Bligh’s new “legitimacy paradigm” bans should be aimed at parties that seek to undermine the functional role assigned to them by operating against pluralism (p. 1368). Bligh approvingly mentions the possibility of the denial of state subsidies to Flemish Interest (p. 1376), seemingly accepting the applicability of the legitimacy paradigm to this case.6 The early Dutch theorist of militant democracy Van den Bergh already stressed that democracy has substantive content and is not simply procedural (Rijpkema 2018). Wagrandl (2018: 151, emphasis in original) specifies this content, writing that “militant democracy is always militant liberal democracy”, adding that militant democracy “may well defend liberalism against democracy” in the case a tyranny of the majority looms. Different from the interwar period, “the real target of most of democracy’s opponents today is not democracy itself, but its liberal part”, resulting in “militant liberalism” (p. 152).7 Mouffe (2005: 52) agrees with this reading, observing “the triumph of a purely liberal interpretation of the  Bourne and Casal Bértoa (2017: 227) also categorize Belgium as following a legitimacy rationale for the 2004 “ban” of Flemish Interest, which they admit is a “rather ambiguous case” (p. 230). 7  Rummens and Abts’s (2010) strategy of a concentric containment of political extremism, where the screws are tightened the closer extremists come to power, while seemingly nuanced and flexible, is premised on the idea that “democratic parties should be committed to the unrelenting imposition of a civilizing pressure on extremist parties” (p. 657), thus assuming a clear distinction between democratic and undemocratic parties. As does Golder (2016: 478), who equates radical with anti-­ system parties and extreme with undemocratic parties. 6

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nature of modern democracy”. This development, which she deplores, has come at the expense of popular sovereignty and has resulted in a “democratic deficit” (p.  53) that right-wing populist movements have seized upon. Moral condemnation and a cordon sanitaire are not the answer, according to Mouffe (2005: 67), who briefly discusses the case of Belgium. Instead, a re-politicization is called for. Koskenniemi (2000) similarly criticizes the equation of liberalism and democracy, arguing that a juxtaposition of democratic government and undemocratic opposition ignores that political competition normally revolves around different understandings of democracy, urging to take “the participants’ self-­ understanding seriously” (p. 440). It is no surprise that Flemish Interest “voters are convinced that the cordon is a perverse, unfair and undemocratic strategy of the established parties” (Abts 2015: 691).8

8.4 Militant Democracy in Belgium The Belgian constitution does not mention political parties and provides no explicit basis for a party ban. Neither is there lower order legislation that specifies the conditions under which parties can operate (Jamin 2005: 90–91). Although it is common to read that Flemish Interest was banned in November 2004, the ruling did not concern the party as such but three associations closely connected to the party (Erk 2005). Moreover, these associations were not banned but convicted of racism. Under Belgian law, this could have resulted in the withdrawal of access to public funding and the media, among others, but not the dissolution of the party or its political participation. Since 1989, in order to be eligible for public funding, Belgian parties need to declare in their statutes and/or their electoral program, that they respect in their actions, their organizations, and through their officials, the European Convention of Human Rights from 1950 and subsequent legislation (Jamin 2005: 95). Flemish Interest more than complied,  There is also evidence of self-exclusion, with Flemish Interest declining to take up a position it was entitled to and making unrealistic demands in exchange of support of a minority government (Coffé 2005b: 211–212). 8

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making it the only Belgian party “to explicitly underwrite the basic principles of liberal democracy” in its statutes (Deschouwer 2001: 79). In 1999, a clause was added stipulating that any party violating this requirement could be cut off from funding by the Council of State (Jamin 2005: 96; Bale 2007: 152). In 2006, francophone parties together with the Flemish Socialists brought a case against two Flemish Interest associations before the Council of State based on article 15 of the law on election finance. The incriminating evidence consisted of some remarks by prominent Flemish Interest politicians at a meeting earlier that year. The request was to suspend public funding of around two million Euros for one year. The Council of State rejected this request, ruling there was insufficient evidence.9 The cordon sanitaire is an agreement among the other parties to refuse cooperation with the extreme right. This means, concretely: no joint government, no joint legislative activity, no attempt to seek the support of Flemish Interest for own legislative activities, no support for legislative activities by Flemish Interest, no joint media appearances, and no electoral cooperation. However, consensus only extends to the first four rules (Damen 2001: 92). The first cordon sanitaire dates back to 1989, when the presidents of the Flemish Socialist, Liberal, Christian-Democrat, and Green parties, together with the nationalist Volksunie (VU), signed an agreement “not to conclude political agreements or deals with the VB, neither in the context of democratically elected bodies at the municipal, provincial, regional, national or European level, nor in elections to these bodies” (ibid.). Driving force were the Flemish Greens. The reason for the cordon was said to be the disrespect for fundamental democratic principles and human rights. This first agreement lasted only 40 days. When the Flemish nationalist party got cold feet, the Flemish Liberals and Christian-Democrats pulled out too. In 1992 the Flemish parliament adopted a resolution condemning Flemish Interest for repeatedly violating the European Convention of Human Rights in its so-called 70-point program. The resolution roundly condemns the way in which the party addresses the challenges of  See: https://www.knack.be/nieuws/belgie/vlaams-belang-behoudt-partijdotatie/article-­ normal-­23604.html?cookie_check=1559037436

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migration policy and even contains references to South African apartheid and Nazi-Germany.10 A second resolution was passed in 1997.11 Driving force were again the Flemish Greens. This time, it was addressing racism. The resolution of 1997 made reference to the one from 1992 but was less explicit. Importantly, neither resolution said anything about cooperation with Flemish Interest. Instead, non-governmental organizations (NGOs) launched a campaign to preclude any cooperation with the extreme right at the local level. Geys et  al. (2006: 966) confirm that “no coalition including Vlaams Blok has yet been formed at any level of government”. The francophone parties united against National Democracy, signing “a charter for democracy” in 1993, renewed by the presidents of the four mainstream parties in 2002.12 The charter has three pillars: political isolation of extreme-right parties, the defense of tolerance and democracy through antiracist rhetoric, and a resolve to tackle the social origins, especially social exclusion, of supporters of extreme-right parties (Coffé 2005a: 168). The attitude of francophone parties toward the extreme right differs in four respects from the cordon sanitaire around Flemish Interest (Coffé 2005a: 169–171, 180).13 First, francophone politicians make it personal, refusing every contact with extreme-right politicians. In Flanders, only the Greens took this stance (Damen 2001: 91). Second, the francophone cordon preceded the electoral rise of the extreme right. Third, francophone parties actively tried to deny National Democracy and Flemish Interest positions they were entitled to. Fourth, francophone parties urged their counterparts in the Flemish Parliament to use the legal opportunity to deny Flemist Interest public money after its associations  Available at: https://www.vlaamsparlement.be/parlementaire-documenten/parlementaireinitiatieven/366175 11  Available at: https://www.vlaamsparlement.be/parlementaire-documenten/parlementaireinitiatieven/233334 12  Delwit (2007: 147) describes National Democracy as adopting an “anti-system or anti-political establishment strategy”. 13  To what extent is the attitude of especially francophone parties to Flemish Interest informed by the tainted past of Flemish nationalism? One reason why Flemish Interest is so much stronger than National Democracy is that it could build on and emerged from a nationalist, extreme-right, organizational landscape (Art 2008). This could be a double-edged sword, as the ties to Flemish nationalism, discredited by its collaboration in World War II (WWII), hindered its acceptance. 10

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were convicted for racism. However, only the Flemish Greens supported such a measure. In sum, the strategy of exclusion and punishment adopted by mainstream francophone parties goes further than the strategy of non-cooperation adopted by the Flemish parties.14 In curtailing the influence of National Democracy, the mainstream parties were greatly aided by its leader, Féret, who lost his city council seat because he had falsified his residence and in 2006 “was convicted of spreading racist propaganda and election manifestoes and barred from standing for elected office for ten years” (Art 2008: 436). The next blow was that the French Front National won a court case prohibiting its Belgian “counterpart” from using its name, which was subsequently changed to Démocratie Nationale. There is one exception to the resolute resolve against xenophobic politics in Belgium. From 1979 on, the Front Démocratique des Francophones (FDF) major of Schaarbeek, Roger Nols, drew attention with anti-­ immigration rhetoric, even defying the law in 1981 by refusing to register non-European nationals. The Parti Réformateur Libéral (PRL) minister of Justice refused to act and the June 1984 law on immigration made it easy for local governments not to register non-European nationals. Six Brussels communities made use of this possibility (Coffé 2005a: 164). That same year, Nols left the FDF for the PRL and continued with his provocations, campaigning in 1991 with the slogan to “stop the invasion”. That Nols, briefly, joined National Democracy in 1995 comes as little surprise – the real mystery is why the FDF first, and the PRL later, did not kick him out. None of the francophone parties deemed it necessary to react at the time (Coffé 2005a: 165; Fitzmaurice 1992: 303) and as a result “undoubtedly helped to legitimize the xenophobic current” (Delwit 2007: 154).

 The cordon is not necessarily limited to the extreme right. In Wallonia, the electoral success of the radical left Parti du Travail de Belgique/Partij van de Arbeid van België (PTB/PvdA) has once again raised the question whether the mainstream parties should cooperate with this former Maoist outfit with roots in militant trade unionism (Meijer 2015: 77). Tellingly, Delwit (2012) discusses Flemish Interest, National Democracy, and the PTB/PvdA together, though, surprisingly, in the context of populism. 14

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8.5 Flemish Interest: A Threat to Democracy? What kind of party is Flemish Interest? Is it “simply extreme right” (Deschouwer 2001: 64) or perhaps a “solidly right-wing, nationalist party” (Coffé 2005b: 217)? From the start in 1978, Flemish Interest was a “radical Flemish nationalist party but already with some far-right propensities (Fitzmaurice 1992: 301; see also Breuning 1997)”. De Cleen (2016: 228) shows how the elements of nationalism and populism are connected through an “exclusionary nationalist definition of ‘the people’ (as the nation)”. Flemish Interest’s combination of Flemish nationalism and populism has given rise to new terms seeking to capture this phenomenon, such as “ethno-populist” (Abts 2015: 670) and substate-­ nationalist and populist (Van Haute et al. 2018: 972). Others highlight the combination of extreme-right and populist elements as captured by the label “anti-immigrant, antistate populist” (Downs 2012: 90; see also Golder 2016: 481). Highly influential has been Mudde’s (2013: 3) category of the “populist radical right” (Mudde 2013: 3), which also covers National Democracy and is characterized by “nativism, authoritarianism and populism”.15 And what part of Flemish Interest has provoked the strong reaction from the other parties? Its radical nationalism, its extreme-right program, its populism, the combination of these three elements? These distinctions  also matter conceptually. In Capoccia’s (2005) typology of anti-­ system parties, a party can be anti-system in an ideological and a relational sense. A party is anti-system in a relational sense when it has a distant spatial location, low coalition potential, and employs outbidding propaganda and delegitimizing messages. Ideological anti-systemness “is a broad category that encompasses two kinds of parties, the one challenging democracy as such, the other challenging the territorial boundary of the polity” (p. 33). While Flemish Interest advocates Flemish independence this is not the reason for its political exclusion, certainly not by fellow Flemish parties. Rather, it is the leading role in the “xenophobic

 Walgrave and De Swert (2004: 485) identify four issues that characterize Flemish Interest in its party program and among voters: Flemish nationalism, immigration, antipolitics, and crime. 15

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right” and its propagation of “cultural ‘neo-racism’” (Hossay 1996: 355), based on the idea that cultural differences are insurmountable.16 Flemish Interest wants to abolish intermediary institutions such as the provinces and the senate, to have more direct elections for public offices, and to introduce a binding referendum. De Lange and Akkerman (2012: 33) label this package of institutional reforms “populist democracy”, meaning the party is differently democratic, not antidemocratic. The real problem lies elsewhere, with Flemish Interest’s policy proposals, which are “at odds with the principle of pluralism, which is strongly anchored in the Belgian constitution” (p. 36). The term “hegemonic liberal democracy” (De Lange and Akkerman 2012: 45) captures this well. Militant democracy in Belgium today, therefore, is militant liberal democracy. Flemish Interest is ostracized because it is seen as presenting a threat to a plural, open society, not because it is regarded as a threat to democracy. Akkerman and Rooduijn (2015: 1149) find that “the VB is the only party with a steadily increasing radicalism between 1991 and 2010” (see also Van Spanje and Van der Brug 2007: 1033), going against the trend in which exclusion has no impact on radicalization. Moreover, after the May 2019 elections, Flemish Interest is back as the second largest party in Flanders and nationally. This casts doubt on the argument that “the strange decline of the populist radical right” can be seen as a success of the cordon, as its permanent opposition status made the party increasingly irrelevant, drawing disgruntled voters to less extreme alternatives such as the Lijst Dedecker (LDD) and the Nieuwe Vlaamse Alliantie (N-VA) (Pauwels 2011). In fact, there might be a relationship between the success of the extreme right and consociationalism. If voter support for populism and the extreme right is a reaction to the lack of choice presented by consociationalism, as some contend (Fitzmaurice 1992;

 In Capoccia’s (2005) typology of anti-systemness, Flemish Interest would have to be classified as a “polarizing party” because of its relational, not ideological, anti-systemness. This would put the party in the company of the French Gaullists in the Fourth Republic and the German Party of Democratic Socialism, the communist successor party in the former East Germany. However, it is not clear what is gained by doing so. 16

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Mouffe 2005; Andeweg et al. 2008), then militant consociational democracy fights the ghosts it awoke.17 One explanation for the radicalization and success of Flemish Interest is the unresponsiveness of the political system to its main concern: immigration control and the integration of immigrants (Dandoy 2014). In 2000, Belgium became “Europe’s most liberal nationality regime”, granting citizenship to anybody desiring it and having lived in the country for at least seven years (Joppke 2008: 23). Loobuyck and Jacobs (2010: 33) go further, claiming that “Belgium has one of the most liberal and open nationalization legislations in the world”. Different from immigration and naturalization, integration policies are a regional matter and integration policies in Flanders and Wallonia diverge. The main difference is that because of the history of the Flemish national movement, ethnicity plays an important role in Flanders, through the “recognition of ethno-­ cultural groups and group-based multicultural policies” (p.  35). And although integration requirements have been tightened, the underlying philosophy is still one of multi-culturalism, though with a leading role for Flemish culture. This fuels Flemish Interest’s campaign, in which anti-­ multicultural and anti-Islam positions have been “absolutely central” (De Cleen 2016: 237).

8.6 Norms of Inclusion and Exclusion Levitsky and Ziblatt (2018: 26–29) mention interwar Belgium as a successful example of democratic “gatekeeping”, which “requires that mainstream parties isolate and defeat extremist forces” (p. 24), which, it should be added, for them are authoritarian forces. Loewenstein (1937a, b) observed, and welcomed, a legislative and political reaction to threats from the extreme left and right across Europe, but Capoccia’s (2005) analysis of the defense of democracy in interwar Europe suggests that the case of Belgium actually stands out by the way in which the main right-­ wing party at the time, the Catholics, resisted the temptation to lurch  For an overview of the relationship between consensus democracy and consociational democracy and voting for the extreme right, see Bogaards (2017). 17

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right and instead cooperated with the Liberals, Socialists, and even Communists in taking decisive action to thwart the threat posed by the anti-democratic Rexist party, which won 10% of the seats in the national parliament in the 1936 elections (Dumoulin et al. 2006). Such resolve was not a foregone conclusion, especially since the Catholic Party was “an amalgam of groups and subgroups” (p. 408) and Rex originated in the Catholic pillar (Gerard 1985). The key moment came when the Rexist leader forced a by-election and found himself opposed by the prime minister running as the candidate for all other democratic parties plus the Communists, who also had done well in the 1936 parliamentary elections. Rex lost and never recovered. In Capoccia’s (2005: 129) detailed analysis of the defense of democracy against the threat of Rex, it is striking to read how measured the response of the Belgian state and mainstream parties was. No party ban, no special legislation, but instead relatively minor and targeted interventions such as the denial of radio access to the Rex leader and the prohibition of his proposed “March on Brussels”, both in 1936.18 More important is what did not happen: no policy concessions and no negotiations. The only exception to the success of militant democracy in the interwar period was cooperation between the Katholieke Vlaamse Volkspartij (KVV), the Flemish Catholic party, and the Vlaams Nationaal Verbond (VNV), a Flemish nationalist party with fascist tendencies that did well in the elections of 1936 under the name of Vlaams Nationaal Blok. This cooperation came in two forms. First, the two parties formed coalition governments in three provincial councils. Second, they signed a cooperation agreement in December 1936. However, De Wever (1994: 231–237) downplays the importance of this agreement, which existed on paper only, from the beginning lacked support in both parties, and lasted less than nine months. Main stumbling block was the antidemocratic character of the VNV. Downs (2012: 88) suggests that the successful defense of democracy in interwar Belgium has shaped “the country’s historical memory”. If so,  In Finland and Czechoslavakia, the other two interwar democracies that successfully defended their democracies against anti-system parties, anti-extremist legislation was “strong”, whereas in Belgium it was only “medium” (Capoccia 2005: 311). 18

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this memory has worked indirectly and implicitly to inform the contemporary reaction to the extreme right in Belgium. In the literature on the cordon sanitaire, no reference is made to the interwar period. Nonetheless, it is helpful to conceive of anti-pact rules as a behavioral norm (Geys et al. 2006: 957) and to ask how this norm has emerged and reproduced itself over time. It is tempting to take the precedent of interwar militant democracy as evidence of path dependence and to offer an explanation grounded in historical institutionalism. However, as Rixen and Viola (2015) have argued, the notion of path dependence has been used too loosely and is best understood as a specific process of self-reinforcement, a process that does not seem to apply to militant democracy in Belgium. March and Olsen (1989) famously distinguish between the logic of consequentiality and the logic of appropriateness. March and Olsen (1989: 161) think that “most behavior in politics follows such a logic of appropriateness”.19 But why is it appropriate to include parties representing different language groups and to exclude parties on the extreme right? Why should inclusion be restricted to some categories of political expression but not others? Harell (2010: 412) provides a socio-psychological explanation, distinguishing between tolerance, intolerance, and what she calls “multicultural tolerance”, defined as “individuals who support speech rights for objectionable groups, but do not extend them to groups that promote hatred”. Her survey results from two linguistically divided and multicultural societies, Canada and Belgium, show that young people indeed make this distinction, demonstrating less tolerance toward racists than to other groups they might disagree with. These findings suggest a moral intuition to treat racism differently even to the point of exclusion. Other evidence comes from Dierickx (1978), who studied members of the federal parliament in the late 1970s, before the rise of Flemish Interest. He constructed an empirical measure of consociational political style, asking MPs about their stance on moderation, secrecy, mediation, realism, fundamentalism, and intransigence. While Diericks (p. 149) finds overall support for a consociational political culture, Belgian MPs  Cf. Hodgson’s (2006: 2–3) definition of institutions in terms of rules and rules in turn in terms of normative dispositions. 19

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differed from this pattern on one aspect: fundamentalism. More than half of the MPs most strongly agreed with the statement that “when principles are at stake, it is better to accept a conflict than to question one’s own convictions”. This stands in marked contrast to their attitudes toward making concessions to political opponents, suggesting a difference between practical (flexible) and normative (strict) considerations. This distinction was found across the political spectrum. In Belgium, both consociationalism and militant democracy have historical roots, going back at least to the interwar period. In other words, the norms of inclusion and exclusion have always existed in parallel in Belgium. In fact, these norms and principles may have evolved in relation to each other. Andeweg et al. (2008: 81) suggest that consociationalism in the interwar period developed “partly” as a reaction to the external threat of the First World War and the internal threat of pro-fascist movements. If this is correct, then consociationalism in the 1930s was strengthened by the joint effort of mainstream parties to politically exclude anti-system parties, most notably the Flemish (nationalist) and Walloon extreme right. In that case, political inclusion and exclusion worked in tandem. However, the politics of compromise have not always held sway and even today cannot be taken for granted. The School Pact of 1958 came after secular governments of Socialists and Liberals, replacing the Christian-Democrats in power, tried to strengthen the position of public schools at the expense of Catholic schools, provoking the so-called “second school war”, which Obler et al. (1977) see as a sign of an imperfect consociation. Deschouwer (2006: 898, emphasis in original) concludes from this episode that “consociationalism is thus not a constant feature of Belgian post-war politics”, coming to the fore only at times of crisis and then receding into the background. According to Andeweg (2019: 414) “consociationalism has never been completely accepted in Belgium” and has come in waves (See also Frognier 1988). This again showed in the puzzling majoritarian style of politics of the Flemish parties in the first decade of the new century concerning reform of the electoral district of Brussels-Halle-Vilvoorde. Sinardet seeks the explanation in multi-level government and the different logics of each. He contrasts the

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“majoritarian logic of the Flemish level and the consociational logic of the federal level” (Sinardet 2010: 364). Sinardet’s analysis offers a more general insight that might help account for the combination of political inclusion (across the linguistic divide) and political exclusion (of the extreme right): the cordon on both sides of the language border is largely an affair of the Flemish and Francophone parties amongst each other. Flemish parties agreed to a cordon around Flemish Interest and francophone (Walloon and Brussels) parties agreed to a cordon around National Democracy. This agreement was then extended to the federal level, where it always was less relevant than for coalition formation at the regional and local levels of government. In other words, exclusion and inclusion operate at different levels. The inclusionary logic of consociational helps bridge the linguistic divide at the federal level while the exclusionary logic of a cordon around the extreme right originates from and has most relevance for the lower levels of government, levels which are linguistically separated. Militant consociational democracy in Belgium, then, is facilitated by its federal set-up and its split party system, which allows for the conflicting logics to play out at different levels in its federal consociation.20

8.7 Conclusion Militant democracy in Belgium follows a behavioral norm and is a reaction to the relational anti-systemness of the extreme right. Flemish Interest and National Democracy do not pose a threat to Belgian democracy, but their programs are seen as incompatible with the values of democracy and an open society. From this characterization follow several important consequences. First, the cordon sanitaire needs to be reconfirmed, if only in practice, after each election and during each session of parliament. It exists only so long as parties abide by it. Second, the raison d’être of the cordon needs continuous updating. Are the grounds for non-cooperation with the extreme right still valid? Third, it is parties  Whether this can explain the radically different choices made by other West European consociational democracies in their dealings with the extreme right will be explored in a comparative study. 20

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themselves that evaluate the acceptability of Flemish Interest and National Democracy, not the courts. Fourth, and relatedly, it is not entirely clear what standard is being upheld and what test the extreme right would have to pass in order to quality as a legitimate partner. Kirshner’s (2014: 59) theory of self-limiting militant democracy points out that “militant democrats not only have a duty to defend democracy; they also have a duty to repair it”. What might that mean in practice? The literature on deliberative democracy has stressed the importance of “hearing the other side” (Mutz 2006). In the Belgian literature on deliberative democracy, this other side consists of citizens who speak a different language. Several studies have shown that deliberation in a deeply divided society like Belgium is possible and that the quality of deliberation increases in groups that combine French and Dutch-speaking Belgians (Caluwaerts 2012; Caluwaerts and Deschouwer 2014)) and that feelings of hostility toward the outgroup decline (Caluwaerts and Reuchamps 2014). These are encouraging results but so far, the other side has not included voters for the extreme right and no attempt has been made to explore the conditions under which deliberation among supporters of mainstream parties and those currently excluded from political cooperation might increase tolerance on both sides.21 Building on the successful experience with citizen deliberation across the linguistic divide, Belgium could try to break down the “wall of silence” erected by the cordon sanitaire (Fennema 1997: 61, italics in original) and begin an organized dialogue between supports of the extreme right and those of mainstream parties. Divided societies pose different challenges, depending on whether the divisions are socio-cultural or political-ideological. Although consociationalism has been recommended as the type of democracy most suitable to segmented countries (Lijphart 1968, 1977), there is doubt whether consociationalism is possible and desirable in a situation of ideological polarization with anti-system parties (Bogaards 2005). The analysis of the exclusion of the extreme right in Belgium provides a new and different  The same is true for deliberation between ethnic Belgians and recent immigrants. Mudde (2004: 203) is critical about the ostracizing of the Arab European League (AEL), a “tiny organization that blends Arab nationalism and relatively orthodox Islam”. 21

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perspective on two consociational themes around which there seems to be a growing consensus: the need to include others and a preference for proportional tenure. Recently, scholars have become interested in the fate of the “others”, defined as “all those citizens who live in a consociational system but do not belong to any of the ‘significant’ segments of the society” (Stojanović 2018: 345). The exclusion of others is a particular problem in consociational democracies that require citizens and/or politicians to identify with legally predetermined groups, as in Belgium, where the political system is designed to represent and accommodate language groups at various levels of government. However, there are at least two differences between the exclusion of others and the exclusion of the extreme right, both of which are illustrated well by the case of Belgium. First, numbers of excluded others tend to be small. Stojanović (2018: 348–349) focuses on the German speakers in Belgium, who account for less than 1% of the population. Moreover, they have regional autonomy and special representation in the Senate and the German language community is recognized on a par with the Dutch and francophone, hardly evidence of exclusion or second-rate citizenship. Second, if there is any exclusion of others, this is involuntary or, at least, a side effect of arrangements that seek to pacify the main lines of socio-cultural division, thereby leaving out other bases for political participation. In contrast, the political exclusion of the extreme right is deliberate and explicit. Instead of an “exclusion-amid-­ inclusion dilemma” (Agarin et  al. 2018: 300) we have an “exclusion-­ amid-­inclusion paradox”. Agarin et  al. (2018) view the exclusion of others as a practical and normative problem to be remedied by widening their access to political decision making. Similarly, Stojanović (2018: 361) urges consociational democracies to “find ways to ensure the political equality of Others”. While this makes sense if the others in question are those with a different ethnicity from the main groups, those that prefer to participate on the basis of a non-ethnic type of identity, and those that organize around issues rather than identities (Agarin et al. 2018: 303), maximizing inclusion may not be the solution if the others are designated as enemies of liberal democracy and open societies. Militant consociational democracy deliberately excludes “others” and does so for a reason.

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The inclusive governments in Northern Ireland after the Good Friday Agreement have rekindled interest in “proportional tenure”. Just like the electoral system of proportional representation seeks to faithfully translate vote shares into seat shares, so proportional tenure implies that the composition of government closely resembles the composition of parliament. In fact, it does so through the same formulas. In practice, this means that in Northern Ireland parties get to choose from a predetermined list with ministries based on their electoral results. More intuitive than the terms “proportional sequential coalitions” (McGarry and Loizides 2016) or “sequential and proportional allocation rules” (McGarry and O’Leary 2016), which describe the process, is Taylor and Lijphart’s (1985) original term of proportional tenure, which captures the goal and outcome. Its advocates view proportional tenure rules as superior to the ordinary process of post-election coalition formation, ethnic quotas, and so-called centripetal coalitions that include moderate parties across the ethnic divide while excluding hardliners. Proportional tenure is achieved through “an algorithm that is both party- and ethnicity-blind” (McGarry and O’Leary 2016: 501): “the only conditions for inclusion should be each party’s ability to win sufficient votes (…) and a commitment to non-­ violent politics” (McGarry and Loizides 2016: 854). It is even recommended for Belgium to help speed up the formation of the executive (McGarry and O’Leary 2016: 512). This advice ignores that proportional tenure rules would have broken the cordon sanitaire around the extreme right, automatically providing Flemish Interest with its due share of ministries.22 Proportional tenure rules, by denying parties the right to choose their governmental partners, make it impossible to defend democracy.  In the Brussels Capital Region, since 1989 a default procedure is in place that allocates specified portfolios in a specified order among the language groups in case no consensus on government formation among the parties in the regional parliament can be found (Bodson and Loizides 2017: 93). This article was updated in 2014 but has never been used. Different from Northern Ireland, it is language groups that choose, not parties, and the law does not specify how the language groups reach their decisions. Although at one point Flemish Interest was the largest Flemish party in the Brussels parliament, it always remained a minority. Finally, the procedure provides mainstream parties with a strong incentive to reach an agreement among each other, preserve the cordon sanitaire, and prevent the unwanted inclusion of the extreme right into the regional government for procedural reasons. 22

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Technical tricks that reduce the proportionality of the cabinet and/or parliament (McGarry and O’Leary 2016: 854; Blas 2018: 1017) only help to keep extremists of any kind out when they are small, not when they receive 12% of the national vote, as Flemish Interest did in 2007 and 2019. In other words, proportional tenure rules are inimical to militant consociational democracy. The concept of militant consociational democracy has allowed new insights into the case of Belgium and into the combination of inclusion and exclusion. Militant consociational democracy is a political system that includes political parties across the main dividing lines in society but categorically refuses to accept extremist parties on the right and left as legitimate partners. Militant consociational democracy limits the possibility to compromise to a certain category of parties, those that are deemed liberally democratic. The Belgian experience requires us to rethink standard responses to questions about inclusion and opens up a new debate about the normative desirability, political feasibility, and practical effectiveness of the deliberate exclusion of extremists in consociational democracies.

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9 Towards a Sociology of Social Compromise: Social Compromise Amongst Victims of Conflict in Northern Ireland, South Africa and Sri Lanka John D. Brewer

9.1 Introduction Compromise is an essential part of the democratic process. In stable democratic societies, it forms one of the main principles by which decision-­ making is accomplished. This is no less true with the rise of anti-politics with the return to identity politics in Europe and the USA, where compromise is seen as surrender. The return to ethnic authenticity as a political principle impairs the fairness and reciprocity of the democratic decision-making process. However, this chapter is not concerned with compromise in stable—or increasingly unstable—democratic societies, but rather with compromise in the process of democratisation in societies emerging out of conflict. In this kind of transitional society, compromise is an essential part of the process of conflict transformation and helps to consolidate the democratic transition. J. D. Brewer (*) Queen’s University Belfast, Belfast, UK e-mail: [email protected] © The Author(s) 2020 S. Baume, S. Novak (eds.), Compromises in Democracy, Palgrave Studies in Compromise after Conflict, https://doi.org/10.1007/978-3-030-40802-2_9

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In transitional societies, however, compromise is both political and social. Political compromise describes reciprocal agreements between parties to the peace negotiations in order to make political concessions sufficient to end conflict. Social compromise involves people developing ways of living together, in which concessions form part of a shared social life. Political compromise between warring factions is about conflict transformation; social compromise is about learning to live together after conflict as a form of social transformation. The domain in which the first is practised is the political sphere; the domain for the second is society itself. Some forms of conflict transformation eliminate any problems around garnering and maintaining social compromise, since partition agreements separate the warring factions into new states or devolved regions, and mostly thereby translate these problems into inter-state conflicts (on the role of territorial integrity and spatial separation in peace processes see Brewer 2010: 19–28; 2013). Where peace agreements leave the territory intact and warring groups are not spatially separated, social compromise in the post-conflict reconstruction stage becomes vitally important to the short-term prospect of managing the threat of renewed outbreaks of violence, and to the long-term chances of reconciliation and societal healing. Social compromise is thus an asset to the democratisation process. This chapter therefore concerns itself with social compromise after the ending of conflict in societies that have retained their territorial integrity. It considers the issue of what social compromise means when people have to come to terms with past enmity and the memories of the conflict itself and relate to former protagonists in ways that support democratic transitions. It suggests that a sociological approach to the understanding of social compromise is fruitful. A sociological formulation is outlined, which it tests through application to social compromise in Northern Ireland, South Africa and Sri Lanka.1 First, it is important to establish the general neglect there has been of the process of social compromise in favour of the attention on political compromise.  The research was funded by the Leverhulme Trust, grant number F/100/152/AK and ran between 2009 and 2015. The methodology is outlined in Brewer et al. (2018a: 4–9). A rigorous sampling procedure was applied to ensure a random sample of victims was obtained unbiased towards socially desirable responses. 1

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9.2 Democracy and Compromise As commonly understood, compromise represents an agreement to make mutual concessions towards each other from now on: no matter what we did to each other in the past, we will act towards each other in the future differently as set out in the agreement between us. This is true regardless of whether the agreement is between warring factions in politics or in inter-personal relations between people in society. The key to unlocking the process of compromise is to understand the circumstances that motivate the consensus to agree. The value placed on democratic decision-making is often presented as an important motivation to political compromise. However, democracy and compromise are linked in three types of agreement following conflict that represent almost three forms of compromise. The first and most obvious is political compromise between states and parties who agree in order to resolve inter-­ state or inter-party disputes. However, the conceptual focus has been in particular on those political compromises that are described as ‘rotten’ on moral grounds since the agreement perpetuates power inequalities between the parties to the agreement (e.g., Margalit 2010). Margalit avows any interest in what he calls personal compromise, in preference for a focus on ‘compromises between states rather than compromises between individuals’ (2010: 23), since he wishes to demarcate those political compromises states are not allowed to make for peace. Rotten compromises are those where negotiated political agreements establish or maintain inhuman states, regimes and political orders, based on cruelty and humiliation, where humans are not treated with dignity (2010: 2, 54). Margalit lists as examples of rotten compromises the 1938 Munich Agreement, the 1939 Hitler-Stalin Pact and the 1945 Yalta Agreement. The second type is ‘moral compromise’ (Archard 2012). These are compromises made for the sake of achieving agreement over moral issues, in order to secure a morally desirable outcome when the compromise is preferable to continued disagreement. The morally preferred outcome can be democratic virtues like peace, the promotion of justice and elimination of poverty, or narrower policy preferences that provoke dispute, like human rights, religious liberty, abortion and the like. A moral

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compromise is a compromise over moral matters; it is not the outcome that distinguishes moral compromises but the focus of the disagreement over moral matters. A moral compromise occurs therefore when parties agree to two things: when they agree around a second-best consensus but agree to continue to disagree over first preferences. Moral compromises of this sort come in two kinds, however. There are compromises where the continued disagreement is aired publicly, and those where the disagreement is concealed in public. Archard refers to the latter as ‘moral compromises with public agreement’. This second form represents the classic democratic compromise, where private disagreements are kept private in order to continue the compromise in public; it is like the form of cabinet responsibility in the Westminster democratic system. People keep to the agreement in public despite private disagreements, primarily because of the value placed on consensus in democratic decision-making. The third kind of compromise is intra-personal compromise (Leopora and Goodin 2013; also Leopora 2012) or what Benjamin (1990) refers to as ‘internal’ compromise. This form constitutes the reflexive, intra-­ personal decision-making that actors are required to undertake within themselves when making choices between conflicting and competing beliefs and principles. Leopora and Goodin refer to people as ‘being compromised’ (2013: 18) by their internal conflicts and they see this as the core to the notion of democracy (2013: 19), since it involves people sacrificing something that is of principled concern to them (2013: 27) in order to agree with others as part of democratic decision-making. It is this internal process of forfeiture that is being challenged by the emergence of the anti-politics of identity, in which a virtue is made of uncompromising allegiances to nation, group and identity. The rise of far-right anti-immigration parties in Europe, the native English nationalism of Brexit in Britain, and Trumpism in the USA reflect the resistance many voters feel against sacrificing their identity concerns for the sake of distant elite political agreements. As intellectually fecund as these formulations are, it is clear that none of them conceptualise social compromise between people after conflict, and thus they neglect the problematic of this chapter; namely, the issue of how people inter-personally learn to live together during the

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democratisation process after conflict in a way that consolidates the democratic transition. This chapter proffers a sociological contribution to the conceptualisation of social compromise. The task for sociology is to unpick what social compromise is like as a social practice at the inter-personal level after conflict once an acceptable political agreement has been settled. Intra-­ personal or ‘internal’ compromise, while clearly an important part of the process, is not the appropriate level of reductionism where the sociology of social compromise must begin. What is significant about the sociological conceptualisation of social compromise suggested here is that it is very different from the literature on political compromise and the idea of democratic agreement and consensual decision-making. Social compromise focuses instead on human agency, rendering it as a social practice that can be performed regardless of feelings and emotions and prior to attitude or value change. However, social compromise is relevant to the debate about democracy and to what this chapter calls political compromise. The capacity of people to practise social compromise impacts positively on their experience of the democratisation process. The stability of the democratisation process after conflict depends in large part on two conditions: on people’s experience of peace after the violence has stopped; and the way resistance to change amongst those who oppose the settlement is managed. Continued human rights abuse of opponents undermines the second condition, while social compromise undergirds and supports the first condition. Social compromise is an important part of the consolidation of democracy after conflict.

9.3 Towards a Sociology of Social Compromise A sociological approach to social compromise explores the social processes that bear upon the capacity of erstwhile enemies to make concessions in order to learn to live together in society after conflict. These social processes are mediated by several important conditions, the absence of which explains why not all conflicts end in social compromise. The sociology of compromise distinguishes between public and private behaviours and isolates the importance of people’s performance of compromise

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through various social processes in public regardless of their private emotions. These social processes are not psychological mindsets or personality traits that make people favourable to compromise; they are social compromise itself. They describe what social compromise is as a series of performative accomplishments in inter-personal relations following conflict. In other work (see Brewer et al. 2018b: 9), I have tendered the following definition of social compromise, describing it as: ‘the reciprocal practice of tolerance and civility toward former protagonists in the public sphere, involving an act of will to avoid behaving and talking in public space in the ways that people’s emotions in the private sphere would normally dictate, thereby assisting people to keep to their reciprocal obligations’. Two features of this definition stand out. First, social compromise after conflict works through civility and tolerance but is different from them. There is a long-established philosophical debate about civility and toleration in which toleration is rendered as discrete practices within the public sphere that assists democratic dialogue (O’Neill 1993), with civility portrayed as the exercise of tolerance in the face of deep disagreement (Calhoun 2000: 256). Social order and political stability in deeply divided societies is recognised in Rawls’s notion of justice as dependant on the practice of toleration (1996: 10), and Margalit (2010: 168) notes that tolerance is needed for political compromises at the macro-level. However, while social compromise is outworked through civility and tolerance, it is not equivalent to them. I am not arguing that victims compromise because of tolerance. It is the reverse; they tolerate erstwhile enemies because of social compromise. For victims of conflict, civility and tolerance are premised first on the ability to compromise in inter-­ personal relations with former protagonists, such that social compromise makes civility and tolerance possible. A sociological approach to social compromise is thus less concerned with clarifying the virtues of civility and tolerance and more with specifying the inter-personal and social structural conditions under which social compromise allows civility and tolerance to flourish. This is an important pre-requisite for any conceptualisation of social compromise.

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Secondly, this definition renders social compromise into a social practice. Tuomela’s (2002) philosophy of social practices describes social practices as the specific mental states of agents that are orientated towards collective attitudes and social interests, and as such are the building blocks of inter-subjectivity and eventually of habit, custom and tradition in society. In sociology, the term social practice is treated almost as an equivalent to social action, describing forms of relations, activities and discursive strategies that are normative. Normative is meant in both its sociological senses: something that is based on norms (i.e., grounded in actual values, beliefs and behaviours) and is also socially desirable (i.e., it has virtue attached to it as an ideal). Sociologically, therefore, social practices constitute the norms, values, habits and behaviours that describe the regular patterns of social life (the way of living together and talking to one another as practised in society) and the aspirational ideals on which social life ought to be lived (the virtuous way to practise living together and talking to one another in society). In sociology, social practices are not rendered as certain forms of mental state, but as forms of social relationships that reproduce society, either as it is mundanely practised (made into the norm) or idealised into something better (made normative). In my definition, therefore, social compromise is a social practice that involves performing the ritualised behaviours and forms of talk that promote tolerance and civility towards former protagonists in the public sphere so that people can keep to the reciprocal obligations in inter-­ personal relations that promote learning to live together. Compromise is both a norm (capable of being practised) and normative (virtuous as an ideal). This draws on two sets of mainstream sociological ideas. First, the sociology of emotions, which points to the distinction between feelings and their enactment in behaviour, and which illustrates people’s capacity to perform actions and talk contrary to how they feel, enabling them to disguise deep emotions and pretend others. Secondly, the familiar distinction between public and private space. It is necessary to specify the relevance of both in order to support the sociological view of social compromise developed here.

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9.3.1 Emotions as Performed Behaviour The sociology of emotions is a vast and well-established sub-discipline and it is not necessary to summarise the field as a whole, but to focus more narrowly on applying its ideas to the management of emotions in post-conflict societies (for a discussion of post-conflict emotions see: Elster 2004: 216–44; Brewer 2010: 103–40; Brewer 2011). Emotions induce senses of urgency and impatience that short-circuit people’s usual prudence but these are momentary. However, while emotions have a short shelf life, people subject to them lack any anticipation that these feelings will decay: we expect to continue to feel what our emotions tell us at the moment of their experience. In this respect, people’s emotions transcend their momentariness and can be separated from raw feelings. Feelings and behaviour are distinct. Emotionally induced urgency, impatience and intensity can inflame feelings within us that result in action that is thought of as unavoidable, yet these feelings need not be enacted; the behaviour is entirely avoidable. We may choose (or not be able) to act out the emotions we feel at the moment of their experience, for while all emotions have behaviours related to them, these action tendencies are not encoded, culturally or genetically, and can be overruled. This analytical discussion can be taken a stage further. Emotions transform in this way when they affect behaviour. The action tendencies associated with particular emotional feelings are performative behaviours (actions that are performed, behaviourally and linguistically, according to the socially learned scripts by which emotion work is conventionally done and talked about). Emotions are artful in two senses therefore, in that the feelings are constructed in their performance and this performance can be uncoupled from what is being felt. The latter may occur because we may either lack any of the feelings associated with the ritualised behaviour we are enacting and talking (we are pretending an emotion) or we are performing behaviours and talking entirely contrary to how we feel (we are disguising an emotion). The social practices and normative structures we experience as constraints and which prevent us from acting out our feelings of the moment can be used to persuade us to act and talk in ways opposite to our momentary emotional response,

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whether for individual reasons, like conscience or personal gain, or social and cultural pressure and legal sanction. There is a further lesson from the sociology of emotions. As Elster notes (2004: 217), emotions are modulated by social relations. They can be kept vivid or moderated by our social networks, which can assist in the reinforcement of feelings and sustain the patterns of action and forms of talk they enact. In particular, dense social networks, with high degrees of connectedness between people, such as in ethno-religious groups, close-­ knit neighbourhoods and the like, help establish norms of reasonableness about what is appropriate to feel, act and say. Karstedt (2002: 309) refers to these as ‘fairness rules’, by which protagonists can determine and conduct future relationships. In this sense, dense social networks represent ‘communities of emotion’ and the social relationships existing within them can in part make momentary emotions seem more permanent and reinforce the social practices they enact. People’s social relations thus modulate their emotions, expurgating, intensifying or moderating them: in short, we become in our emotional repertoire like the people we associate closely with. This view of emotions suggests, therefore, that social compromise does not require people to stop feeling or to suppress emotions; consensus needs to emerge around agreement to perform the ritualised behaviours and forms of talk that people may not personally feel but which are recognised as socially productive for the reciprocal maintenance of civility and tolerance in learning to live together (Mac Ginty 2014, sees ritualised politeness as a feature of what he refers to as ‘everyday peace’; see Brewer et  al. 2018a for a sociological approach to everyday life peacebuilding). This becomes feasible given people’s participation in mutually reinforcing social networks where compromise is socially practised. Of course, dense social networks can work in the opposite direction as well, with our close neighbours and friends persuading us to opposition to flexibility and accommodation with former protagonists. There are a large number of performative behaviours and language scripts through which civility and tolerance are practised as the basis for inter-personal social compromise. Included amongst these social practices are: emotional empathy towards the erstwhile enemy; inclusive and broad understandings of whom victims are, including notions that

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suffering in the past, and during the conflict itself, was widespread and collective, not just experienced by one’s own group; the dismantling of negative stereotypes and the ending of the demonisation of the other; the practice of trust and forgiveness; participation in inclusive social networks and social engagement with the other; and the priority placed on hope and the need to work towards a better future. Civility and tolerance are public behaviours, as Goffman once characterised the whole social condition (1966), behaviours that he called ‘focused interaction’, where people have to ‘handle’ themselves, as he put it, in face-to-face encounters in public. The thrust of Goffman’s argument is that behaviour in public places has as its default the performance and practice of civility and tolerance as part of the constraints imposed by the maintenance of social order. This leaves ‘unfocused interaction’ or what he earlier described as ‘back-stage’ behaviour (1959)—spaces open only to invited intimates—to reflect behaviour that was unconstrained by the demand to maintain social order or the need to perform what he also called our ‘public face’. For the social practice of compromise, it is only necessary as a minimum that its language scripts and behaviours are performed in public; they do not have to reflect private practices. In as much as the social practice of compromise in public is now removed from private feelings, one of the key principles of the sociology of compromise is the distinction between public and private space, to which the chapter now turns.

9.3.2 The Public and Private in Sociology Sociology has long theorised the character of public and private space (for a selection see Bailey 2000; Kumar and Makarova 2008; Sennett (2003 [1974]), suggesting that the private sphere is the domestic sphere, the sphere of home—backstage to use Goffman’s (1959) ubiquitous term— where people take off their overcoat, strip away the public mask and relax. The public is the sphere of social roles outside the home; the sphere of work, politics and civil society. In Goffman’s dramaturgical terms it is front stage space not backstage, where we conform to public expectations, act according to socially agreed roles and talk with a civil tongue (Kingwell 1995) and with the absence of ‘hate speech’ (Paris 2004: 184ff).

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Critically, however, this distinction is no longer a mutually exclusive antinomy, for sociology no longer theorises it as a binary divide. In late modernity the ‘personalisation’ and ‘de-traditionalisation’ (terms used by Giddens 1996: 8–64) that characterises reflexive modernity has collapsed the distinction. The public and private penetrate each other—behaviour formerly restricted to the private sphere is now made into a public performance (politicians crying, open displays of grief, declarations of religious faith by public figures and expressions of public anger and the like). Thus, the personal has become political (Holmes 2000) and public space has been domesticated (Kumar and Makarova 2008: 332). The definition of social compromise proposed here does not require the reinstatement of this as a binary divide. Social compromise is the public performance of behaviours and language scripts that disguise private feelings and forms of talk, representing a ‘surface’ rather than ‘deep’ social practice, to use Hochschild’s (2003) terms, one reproduced ‘front stage’ with what Illouz (2007) calls ‘cold intimacies’ not with the full heartfelt passions of ‘back stage’. The sociology of social compromise does not require that public and private spaces be portrayed as hermetically sealed again. After all, the performance of social compromise in the public sphere is heavily influenced by private considerations and will oscillate according to the array of factors that prevent emotions momentarily being kept under management and control in public. Private factors penetrate the public performance of social compromise. A sociological conceptualisation of social compromise recognises the interpenetration of the public and private spheres. Indeed, it is because this binary has collapsed that some victims can find the public practice of civility and tolerance difficult, either in the long-term or momentarily, for it can be affected by a whole range of factors from within domestic family life, such as painful anniversaries, the constraints of the prosthetic limb or wheelchair, or family rituals like weddings, where the absent family member is missed more than ever. The interpenetration also goes the other way, in that public events can cause private emotional pain, such as when events are brought back through the media, the political statements of former combatants, or wider political events, and the like. As two Northern Irish victims remarked: ‘you do get flashbacks at times. Sometimes I would be lying and you just dream and you are going back to it’ (P29). ‘It

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will never let you go’, the other said, ‘you are a prisoner of your own memories. And it will never let you go. And that is for a variety of reasons. Sometimes you don’t think of it for a while and then it is personal circumstances and it is waves over the top of your head and you go—whoa what’s this? And that is how it is’ (P37). It is little realised by ‘conflict journalists’ who use the media to refight the morality of the past conflict (see Brewer 2015a) or who turn victim experiences into public entertainment through ‘shock-jock’ radio and television that chases ratings at victims’ expense, that this can lead to re-­ traumatisation for victims in private. As a Northern Irish victim said of a notorious BBC Northern Ireland and Radio 5 Live broadcaster: ‘I only have to listen to [name of radio show deleted] in the morning. It is there with you. Every day of the week I feel like picking up the phone and saying to [name of broadcaster deleted], where is it? You are arguing a corner here for these Sinn Fein. You are arguing a corner for the DUP. And they are riding on the lap of it. Where am I in this? (P23)’ The social practice of social compromise thus highlights just how intertwined the public and private spheres are for victims. This interpenetration explains the ambivalence and difficult challenge that the public practice of civility and tolerance represents for most of them.

9.4 Mediators of Social Compromise There is nothing in this sociological conceptualisation that suggests that the public practice of social compromise is easy. The conditions under which social compromise can be garnered and sustained, which facilitate or constrain public civility and tolerance, therefore need clarification. Social compromise is envisaged as being easier for people to perform publicly according to several mediating factors. These are often personal and manifold, but amongst them are included, for example, feelings of hope, the capacity for forgiveness, the ability to transcend divided memories of the former conflict, senses of the fairness of the concessions, views about whether in practice the concessions remain reciprocal, the social networks in which people are located and trust. I call these ‘compromise mediators’ and their potential impact on social compromise can be briefly illustrated.

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Hope is cognitive and sociological at the same time (on sociological treatments of hope see Braithwaite 2004; Brewer 2010: 125–31; Drahos 2004). It describes the cognitive process of anticipating some future desired state but it is materially affected by the social conditions that help sustain the anticipating. The hoped for goals can be individual or social, referring to personal aspirations for oneself or for society generally; people can become excited by anticipating both personal and societal goals. Feelings of hope (i.e., the capacity to anticipate) and the expectation of achieving goals in the future (personal and societal) will affect people’s capacity to compromise. Hope and patience, however, should be run together, for it is worth distinguishing between patient and impatient hope—the willingness to wait or not for the anticipated goals. Late modernity suffers from instant gratification which undermines patience; this is even more so after conflict, when people want peace and want it now, yet peace processes sorely test people’s patience. Social compromise, however, requires the long view. We are familiar with the suggestion that forgiveness has boundaries (Arendt 1989[1958]), even if the ‘unforgivable’ seems to be a very flexible category (see Misztal 2011), but memory and forgiveness are also normally understood as a couplet because people’s capacity to forgive is in common sense believed to be related to their ability to forget (hence the phrase ‘to forgive and forget’). However, despite its advocacy as a post-­ conflict strategy for dealing with problematic memories (e.g., Connerton 2008; Reiff 2016), forgetting can be impossible in the short to medium term for victims. It is significant, therefore, that social compromise as defined here does not require forgetting in the private sphere but a conscious decision in which people determine to transcend divided memories for the purposes of relational closeness with erstwhile enemies in public space (the ancient Greeks referred to this as remembering to forget); the greater the capacity for transcendence, the more likelihood of garnering and sustaining social compromise. People’s sense of the fairness of the concessions, and that the concessions are reciprocal and are being kept to by all parties to them, also affect their capacity for social compromise in the sense it is understood here. That is, people’s ability to fulfil their obligations under the agreement is likely to diminish with the perception that the concessions are unequal or

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erstwhile opponents have abrogated their obligations. Reciprocity and fairness are therefore essential components of compromise. It is necessary for a brief mention of reciprocity. Reciprocity can be conceptualised in game theory terms—in that A’s behaviour is based in part on an assessment of how B’s behaviour impacts on A—rendering it a rational calculation. But even if this is so, the compromise game is not zero sum. It can be in A’s self interest to keep to the terms of the compromise when B abrogates in order to avoid sanctions themselves, or because of their sense of moral worth and consequent wish to occupy the moral high ground, or in order to attract the support of a third party to pressure B. Communal conflicts that appear to have simple zero sum qualities, in that they are between parties that can be thought of as in a binary relationship—black/white, Arab/Jew, Catholic/Protestant—can predispose social compromise to be seen in zero sum terms, where interests are portrayed as mutually exclusive not common. However, this is a contingent problem for my conceptualisation not an essentialist one, although it is real enough in practice. This point confirms the argument that the beliefs people have about the former conflict and its resolution, and others’ involvement in them, bears upon their capacity to social compromise, for this affects the social networks to which people belong and through which the management of emotions is partly accomplished. The ‘communities of emotion’ that dense social networks constitute can support or undercut a person’s capacity to social compromise. Which of these outcomes transpire depends in some part on the quality of the social relations people had with protagonists prior to the conflict, and the impact that the violence had in restricting their post-conflict networks to their own group members. People’s social connectedness with a like-minded social network of compromise is essential to its practice. Thus, both the level of social connectedness of people and the nature of those with whom they feel connected are important mediating considerations in the development of compromise. This introduces the idea of trust. The boundaries of social compromise—like forgiveness—expand outwards with trust. Yet trust is the first casualty of communal conflict. Again standard sociological ideas about trust can be used to support the conceptualisation of compromise

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employed here, for the dominant paradigm in sociology understands trust as related to the density of the social networks in which people participate (Lewis and Weigert 1985a, b; Misztal 1996; Mollering 2001; Seligman 1997, 1998; Sztompka 1999). The more we interact with people known to each other, the greater our social capital, and the more willing we are to take the ‘leaps of trust’ (a phrase taken from Mollering 2001) in an otherwise untrustworthy world (on social capital and conflict transformation see Graham 2016). Post-conflict societies are amongst the most untrusting. But trust can be garnered and practised where victims participate in bridging social networks—networks of compromise if you will—where they learn that erstwhile enemies can be trusted. People who are disconnected from social networks as a result of social withdrawal or who restrict participation to partisan networks that do not bridge social divides will remain untrusting or trustful of only their ‘own’ kind. This returns us to the earlier point. Social compromise after conflict depends in large part on the quality of the social relations people had with protagonists prior to the conflict, and thus the impact that the violence had in restricting their post-conflict networks to their members of their ‘own’ group. These compromise mediators help us understand the circumstances in which its social practice is made easier or breaks down, and why. They are affected profoundly by whether or not a ‘victim identity’ has emerged which restricts victims’ social networks in ways that inhibit participation in communities of compromise. Here, the victim experience becomes, in Max Weber’s terms, the ‘master status’, the central defining identity marker. Victims (individuals or groups) develop ‘victim identity’, therefore, when the victim experience consumes all other identity markers and is used as the ‘mental map’ to explain life’s subsequent fates. The (real or imagined) hurt explains who they are as a person and their social position, not ‘normal’ notions of ageing, the conventional array of personal and social life events, or the natural ‘transition stress’ associated with all major political changes. The development of a victim identity seriously impacts the social connectedness of victims, evident perhaps in social withdrawal (lack of connectedness) or participation in restricted social networks with similar others (partisan connectedness), such as with own group members or within their victim support group alone. A victim

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identity reduces the capacity to trust, inhibits forgiveness, can hinder the development of hope and feelings of reciprocity and keep alive divided and divisive memories.

9.5 W  hat Is Sociological About Social Compromise? The sociology of social compromise places in high relief the sociological truism that social structure, individual personal biography and history elide, justifying the view that this conceptualisation is sociologically robust. Social compromise gets to the kernel of sociology, for they show, using the terminology of C. Wright Mills’ characterisation of the sociological imagination (see Brewer 2003), the intersection of victims’ personal biography, history and the social structure, an interplay that represents sociology’s unique promise, as Mills puts it (1959). Compromise mediators, like identity, trust, forgiveness, hope, people’s experiences of reciprocity and fairness in the settlement, people’s social networks, memory transcendence and the like, are personal and structural at the same time, reflecting people’s history, biography and structural location. Social compromise is deeply embedded in social structural relations as well in victims’ personal biographical experiences. The capacity for forgiveness in victims, for example, is shaped by, amongst other things, the individual biography of faith commitment and the history of personal and family faith, as well as by the religious resources available culturally to victims to draw on in understanding the meaning and practice of forgiveness. Some Sri Lankan victims, for example, modelled their ‘horizontal’ forgiveness with others in personal relationships on the ‘vertical’ forgiveness they felt from their relationship with god (see Wijesinghe and Brewer 2018). Forgiveness, however, is not dependent on personal faith, for secular forgiveness is real in some apartheid victims. Some South African victims explained their victimhood experience as leading to a loss or crisis of faith, making it critically important if forgiveness is to act as a compromise mediator that there are alternative cultural resources to nurture its practice, such as cosmopolitan and humanitarian ethical systems (see Mueller-Hirth 2018). But forgiveness is also based on

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social structural conditions and the history of conflict. Tamil victims, for example, were least forgiving and more revengeful than other Sri Lankan ethnic groups because of the structural violence and disadvantage that is embedded in their double victimhood, where they experience not only their own conflict related harm but also feelings of being vanquished and defeated as a group (see Hayes and Brewer 2018). As an another example of sociology’s promise with respect to understanding social compromise, cross communal social networks represent ‘communities of compromise’ but this mediator is arbitrated by all sorts of structural, biographical and historical factors, such as victims’ pre-­ conflict networks and friendship patterns, their biographical experiences of ‘mixed’ marriages and kinship patterns, the history of their encounters with ‘the other’ in terms of education, work, leisure and residential mixing, the nature of their victimhood experience and the background of those they blame for it, and so on. Young Catholics in Northern Ireland born after the signing of the Good Friday or Belfast Agreement, for example, sometimes called the ‘peace generation’, still feel the constraint of religious geography that separates them, with trusting relationships with Protestants being easier to develop for those who occupy shared space, such as through integrated schools, shared leisure or mixed neighbourhoods (see Smith 2018). Cultural separateness can survive into peace and mixed social networks can be difficult to generate. In this kind of space, culture can be a constraint and the young people still needed the street knowledge to negotiate danger and risk. Cultural processes that affect the group have biographical meaning for individuals, encouraging some victims to experience group hurts as personal ones, and for group loyalties to supersede personal ones, which can result in some victims having strong senses of groups as victims. Group ties can affect how individual victims understand their biographical circumstances and emotionally process their victimhood, resulting in the development of a victim’s identity, frozen in the moment of their victimhood. This can have the consequence of social withdrawal or restricted social networks to people just like themselves, such as in their victim support group. This can facilitate bonding social capital, but not the bridging social capital that promotes communities of compromise. Social structure, history and biography elide in some victims to develop

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exclusive social networks that inhibit the social practice of social compromise; others to inclusive social networks that constitute genuine communities of compromise. One last example can suffice of sociology’s promise with respect to social compromise. The famous distinction made by Johan Galtung between negative and positive peace (Galtung 1969) that dominates Peace Studies as an intellectual field, where negative peace is the ending of violence and positive peace the realisation of justice, fairness and equality of opportunity, and which I have reworked as a contrast between conflict transformation (negative peace) and social transformation (positive peace) (see Brewer 2015b; Brewer et al. 2011), bears directly on the significance of sociology’s approach to social compromise. Broader cultural and structural processes, such as poverty, inequality, social injustice, xenophobia and racism, can limit a post-conflict society’s social transformation, resulting in limited social redistribution. Human rights may improve but the material poverty of some victims can stay as bad as before, such that the violence associated with the conflict may have ended but some victims are subject still to the structural violence of impoverishment and social injustice. The failure to undergo social transformation alongside conflict transformation potentially inhibits the social practice of social compromise or makes it more challenging, for structural processes can impinge on the victimhood experiences of some people, negatively affecting a range of compromise mediators. The negative attitudes of Tamil victims towards compromise mediators arises from their double victimhood, where feelings of being vanquished were coupled with higher levels of economic and social disadvantage compared to Sinhalese victims. The lack of social transformation, for example, can undergird their view of the unfairness of the settlement, or support the view that others are not reciprocally sticking to their obligations under it, and persuade some first generation victims to continue with distrust and unforgivingness, or to impose strict conditions on forgiveness, to lose hope in a better future, and to be unable to transcend the past and its divided memories. It can discourage an emotional empathy with the other that is the bedrock to the social practice of compromise, or, at best, make the social practice of compromise even more discomforting.

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In particular, social injustice destroys hope. The lower levels of hope amongst Tamils, point to the impact that structural disadvantage can have in denuding optimism and belief in progress in the future. There are some structural circumstances, however, were this does not happen. Where hope is delayed rather than denied, the aspiration to better times ahead is left open as a biographical experience, as is the case with many Black South Africans, who retain hopes for structural redistribution under Black majority rule in the future. For many of apartheid’s victims, continued social injustice postpones rather than extinguishes hope. The risk for South Africa is that hope delayed can turn eventually into hopelessness or anger (see Brewer et al. 2018b). Rather than being a backward-­ looking process rooted in fear at reactivating the violence, hope makes social compromise forward looking, rooted in the hope of accelerating the reconstruction of society as a form of peacebuilding.

9.6 Conclusion Inter-personal social compromise after conflict is a messy process, as victims of conflict can attest, but the difficulties of the process reinforce the need for sociology to problematise its meaning. I began by arguing that social compromise was more than the outbreak of mutual agreement— the common way in which political compromise is discussed; rather, it is performed as a social practice. That is to say, it is an accomplished behaviour, the performance of which draws on deliberate strategies of action and forms of talk. Familiar sociological ideas from an array of disparate writers illuminate how feelings are simultaneously enacted in behaviour and language scripts and are profoundly affected by the social relations people who feel these emotions have. There is, however, no social or genetic encoding that ties specific feelings to particular forms of action or talk since the performative behaviour involved in the social construction of emotions can encourage the disguising of feelings (acting and talking in public in ways contrary to private feelings) or pretending emotions (acting and talking in public in ways that display emotions we do not actually feel). The distinction between the public and private performance of emotions, premised on the separation of public and private

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space, is key to the meaning of social compromise. Social compromise is the reciprocal practice of tolerance and civility towards former protagonists in the public sphere. As such, it exists only in its performance; social practices give it meaning. Compromise can exist as a social practice, in other words, long before victims come to feel it as an emotion in private. However, people’s capacity to begin (and continue) to practise social compromise is affected by the interpenetration of the public-private spheres in late modernity. With respect to emotions, which have a raw intensity, urgency and impatience, it can be extremely difficult to initiate and maintain the public performance of social compromise and either disguise what momentarily seem ‘true’ feelings or pretend to others. This is especially so for victims of communal violence who have experienced real or imagined harm in one or more of several ways, leaving the process of victimhood as a life-long problem to be managed. This makes the focus on victims an intellectual strength, however, supporting the view that this topic throws into unusually high relief the factors that garner and maintain the practice of social compromise. This chapter has argued that the practice of social compromise by victims in the public sphere is mediated by a series of compromise mediators that make its performance easier to contemplate and enact, such as hope, forgiveness, the capacity to transcend divided memories, beliefs about the fairness of the peace process and that its concessions are being kept reciprocally, the nature of the dense social networks that structure victims’ social connectedness in the post-conflict stage and trust. Social compromise therefore has both cognitive and social dimensions. Social compromise is not an attitude trait or a social value independent of its performance as a social practice. Thus, attitude and value change need not occur before social compromise can be practised. Social compromise need not become embedded psychologically in people’s mindsets as an attitude trait or sociologically embedded in their value systems as a cultural belief. It needs to be enacted as a social practice, as a set of performances uncoupled from emotions, attitudes and social values, capable of being performed long before, if ever, people feel able to agree with their former enemies. In this way, inter-personal social compromise is fundamental to consolidating the democratisation process by enhancing people’s positive experiences of the peace process.

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Bibliography Archard, D. (2012). Moral Compromise. Philosophy, 87(3), 403–420. Arendt, H. (1989 [1958]). The Human Condition. Chicago: University of Chicago Press. Bailey, J. (2000). Some Meanings of “the Private” in Sociological Thought. Sociology, 34, 381–401. Benjamin, M. (1990). Splitting the Difference. Lawrence: University Press of Kansas. Braithwaite, V. (2004). The Hope Process and Social Inclusion. Annals of the American Academy of Political and Social Science, 592, 128–151. Brewer, J.  D. (2003). C.  Wright Mills and the Ending of Violence. Basingstoke: Palgrave. Brewer, J.  D. (2010). Peace Processes: A Sociological Approach. Cambridge: Polity Press. Brewer, J. D. (2011). Dealing with Emotions in Peacemaking. In S. Karstedt, I. Loader, & H. Strang (Eds.), Emotions, Crime and Justice (pp. 295–313). Oxford: Hart. Brewer, J.  D. (2013). Sociology and Peacebuilding. In R.  Mac Ginty (Ed.), Handbook of Peacebuilding (pp. 159–170). London: Taylor and Francis. Brewer, J. D. (2015a). The Limits of Politics in Northern Ireland’s Peace Process. In J. O’Grady, J. Fernando, & C. Higgins (Eds.), Mining Truths: Festschrift in Honour of Geraldine Smyth OP  – Ecumenical Theologian and Peacebuilder (pp. 185–202). Emming, Germany: Editions of Sankt Ottilien. Brewer, J.  D. (2015b). Peace Processes. In J.  Wright (Ed.), International Encyclopedia of Social and Behavioral Sciences (2nd ed., pp. 648–653). Oxford: Elseviers. Brewer, J. D., Higgins, G. I., & Teeney, F. (2011). Religion, Civil Society and Peace in Northern Ireland. Oxford: Oxford University Press. Brewer, J.  D., Hayes, B.  C., Dudgeon, K., Mueller-Hirth, N., Teeney, F., & Wijesinghe, S.  L. (2018a). The Sociology of Everyday Life Peacebuilding. London: Palgrave. Brewer, J. D., Hayes, B. C., & Teeney, F. (2018b). The Sociology of Compromise After Conflict. London: Palgrave. Calhoun, C. (2000). The Virtue of Civility. Philosophy and Public Affairs, 29, 251–275. Connerton, P. (2008). Seven Types of Forgetting. Memory Studies, 1, 59–72. Drahos, P. (2004). Trading in Public Hope. Annals of the American Academy of Political and Social Sciences, 592, 18–38.

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Elster, J. (2004). Closing the Book. Cambridge: Cambridge University Press. Galtung, J. (1969). Violence, Peace, and Peace Research. Journal of Peace Research, 6, 167–191. Giddens, A. (1996). In Defence of Sociology. Cambridge: Polity Press. Goffman, E. (1959). The Presentation of Self in Everyday Life. London: Penguin. Goffman, E. (1966). Behaviour in Public Places. New York: Simon and Schuster. Graham, L. (2016). Beyond Social Capital. London: Palgrave Macmillan. Hayes, B. C., & Brewer, J. D. (2018). The Road to Compromise in Sri Lanka. In J. D. Brewer, B. C. Hayes, & F. Teeney (Eds.), The Sociology of Compromise After Conflict (pp. 157–178). London: Palgrave. Hochschild, A. (2003). The Managed Heart. Berkeley: University of California Press. Holmes, M. (2000). When Is the Personal Political? The President’s Penis and Other Stories, Sociology, 34, 305–321. Illouz, E. (2007). Cold Intimacies: The Making of Emotional Capitalism. Cambridge: Polity Press. Karstedt, S. (2002). Emotions and Criminal Justice. Theoretical Criminology, 6, 299–317. Kingwell, M. (1995). A Civil Tongue. Philadelphia: Penn State University Press. Kumar, K., & Makarova, E. (2008). The Portable Home: The Domestication of Public Space. Sociological Theory, 26, 324–343. Leopora, C. (2012). On Compromise and Being Compromised. Journal of Political Philosophy, 20(1), 1–22. Leopora, C., & Goodin, R. E. (2013). On Complicity and Compromise. Oxford: Oxford University Press. Lewis, J., & Weigert, A. (1985a). Trust as a Social Reality. Social Forces, 63, 967–985. Lewis, J., & Weigert, A. (1985b). Social Atomism, Holism and Trust. Sociological Quarterly, 26, 955–971. Mac Ginty, R. (2014). Everyday Peace: Bottom-Up and Local Agency in Conflict-Affected Societies. Security Dialogue, 45(6), 548–564. Margalit, A. (2010). On Compromise and Rotten Compromises. Princeton: University Press. Mills, C. W. (1959). The Sociological Imagination. Oxford: Oxford University Press. Misztal, B. (1996). Trust in Modern Societies. Cambridge: Polity Press. Misztal, B. (2011). Forgiveness and the Construction of New Conditions for a Common Life. Contemporary Social Science, 6(1), 39–53. Mollering, G. (2001). The Nature of Trust. Sociology, 35, 403–420.

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Mueller-Hirth, N. (2018). Forgiveness and the Practice of Compromise in Post-­ Apartheid South Africa. In J. D. Brewer, B. C. Hayes, & F. Teeney (Eds.), The Sociology of Compromise After Conflict (pp. 103–128). London: Palgrave. O’Neill, O. (1993). Practices of Toleration. In J. Lichtenberg (Ed.), Democracy and the Mass Media (pp. 155–185). Cambridge: Cambridge University Press. Paris, R. (2004). At War’s End. Cambridge: Cambridge University Press. Rawls, J. (1996). Political Liberalism. New York: Colombia University Press. Reiff, D. (2016). In Praise of Forgetting. New Haven: Yale University Press. Seligman, A. (1997). The Problem of Trust. Princeton: Princeton University Press. Seligman, A. (1998). Trust and Sociability. American Journal of Economics and Sociology, 57, 391–404. Sennett, R. (2003[1974]). The Fall of Public Man. London: Penguin. Smith, A. (2018). Barriers to Trust in a “Peace Process Generation”: Ambivalence in Young Catholics in Northern Ireland. In J. D. Brewer, B. C. Hayes, & F.  Teeney (Eds.), The Sociology of Compromise after Conflict (pp.  75–101). London: Palgrave. Sztompka, P. (1999). Trust: A Sociological Theory. Cambridge: Cambridge University Press. Tuomela, R. (2002). The Philosophy of Social Practices. Cambridge: Cambridge University Press. Wijesinghe, S.  L., & Brewer, J.  D. (2018). Peace-Religiosity and Forgiveness Amongst War Victims in Sri Lanka. In J. D. Brewer, B. C. Hayes, & F. Teeney (Eds.), The Sociology of Compromise After Conflict (pp.  129–155). London: Palgrave.



Afterword: Democratic Politics, Compromise and the Challenge of Populism Dominique Leydet

Populism is one of the crucial challenges facing contemporary democracies. The art of compromise, as practiced by political élites to secure through negotiations the agreements necessary to the development and implementation of public policies and legislation, has become one of the prime targets of those who are intent in cleaning up the “swamp” of ordinary democratic politics.1 But these democratic practices of compromise are themselves sometimes blamed for the rise of right-wing populism in Europe and America. For instance, coalitions, and more particularly, grand coalitions, which have been part of political life for many years in countries like Germany or Belgium, have been blamed by Chantal Mouffe and others for having  On how populism often comes with the contestation of the politics of compromise, see, for instance, Mudde (2004), Canovan (2002), and Urbinati (2013). 1

D. Leydet Université du Québec à Montréal (UQAM), Montréal, QC, Canada e-mail: [email protected] © The Author(s) 2020 S. Baume, S. Novak (eds.), Compromises in Democracy, Palgrave Studies in Compromise after Conflict, https://doi.org/10.1007/978-3-030-40802-2

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contributed to the rise of populist parties by stifling the expression of substantive alternatives to the mainstream parties involved in sharing power. According to Mouffe (2005), to be able to respond effectively to the extreme right, we need to re-politicize democratic politics and eschew the politics of compromise. In other words, the left should embrace the task of creating its own brand of (counter)-populism, opposed to the mainstream of democratic politics, as well as to the extreme right, in order to provide disaffected citizens with an alternative that opens up the possibility of significant, transformational change. This stinging criticism of the politics of compromise has been taken up on the ground by activists who urge political parties on the left and centre left to shirk the politics of accommodation and increase mobilization, even if it means an increased polarization of the citizenry. One of the important contributions made by the various authors of this collection is to question this assessment and sketch arguments that complicate the picture. To begin, they do so by showing that practices of compromise are simply unavoidable in democratic politics, even when one professes a strong commitment in favour of either agonism or a majoritarian conception of democracy. As Manon Westphals shows in her contribution, if agonists wish to establish a new hegemony against the present order, then they cannot limit themselves to the critique of existing rules and policies, they also need to give their project some positive content. Since any counter-­ hegemonic movement must consist in an alliance of different forces (a “chain of equivalence”), compromises will need to be made between them in order to produce something like a common programme. In other words, agonist politics, to be successful, will need to rely, sooner or later, on the art of compromise. There is no easy way out. In his chapter, Patrick Overeem considers referendums as a key element of majoritarian democracy, as opposed to consensus democracy. If the former presupposes a certain homogeneity of the people, the latter is inherently pluralistic: it accepts the internal complexity and pluralism of the people and the need to strike compromises between the diverse interests that compose it. It is unsurprising, therefore, to see partisans of majoritarian democracy, including populists, argue in favour of increasing the use of referendums, presented as a means to give a more effective voice to the people themselves—as opposed to political élites.

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But Overeem makes clear that referendums do not in fact minimize the need for compromise. Indeed, he shows that compromises are often needed not only ex ante, in order to build an alliance capable of winning the vote, but also, and more crucially, ex post. As the case of Brexit has clearly showed, winning the vote often simply sets the stage for a new round of negotiations and compromise over the vote’s concrete implications and the implementation of the results. Insisting on the possibility of escaping the politics of compromise by holding referendums may end up fueling popular feelings of frustration and alienation. In other words, pretending to do away with the need to negotiate messy compromises by reaffirming the power of the majority through referendums can seriously backfire once voters realize that the haggling has only been temporarily suspended and that it must soon start again. What is to be done? If compromises are necessary to democratic politics, but if they tend to stoke the fires of populist politics, then what are we to do in the face of the growing populist challenge to contemporary liberal democracy? One answer is to “circle the wagons” and defend liberal democracy by excluding from democratic politics those parties that question its liberal interpretation. This is the impetus that is sometimes taken to drive support for “militant democracy”: the idea that democracies “have a right to defend themselves against their enemies, even in the absence of violence” (Bogaards quoting Capoccia 2013: 214). If militant democracy is often understood as taking the form of a ban on parties that reject the liberal democratic consensus, Matthijs Bogaards explores the Belgian consociational variant where it is the parties themselves that have enforced over the years a “cordon sanitaire” on populist parties of the extreme right (Flemish Interest and the francophone National Democracy). Their objective in doing so has been to maintain the politics of compromise for political parties that are ready to sustain the liberal democratic order while securing the exclusion of those parties that reject it. Refusing to cooperate with anti-system parties in any way (e.g. no joint government, no joint legislative activity, no attempt to seek the support of the excluded party for one’s party’s legislative activities, and no support for the legislative activities of the excluded party) reduces them to the status of permanent opposition. The hope was that enforcing this exclusion would make these parties increasingly irrelevant and draw

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dissatisfied voters towards less extreme alternatives. In fact, as Bogaards notes, the “cordon sanitaire” has not proven to be particularly effective in keeping extreme parties at bay in recent years. In the elections that took place in May 2019, Flemish Interest has become the second largest party both in Flanders and at the national level. As Bogaards notes, this electoral success is not the result of a relative softening of its message. On the contrary, citing Akkerman and Roodujn (2015: 1149), he reminds us that “the VB is the only party with a steadily increasing radicalism between 1991 and 2010”. While the “cordon sanitaire” has not been successful in reducing the danger of extreme-right populism, at least in Flanders, it may have simply reinforced the belief held by many Belgians that mainstream political parties are in a league to silence their legitimate concerns, notably concerning immigration control and the integration of immigrants. If attempts to exclude anti-system parties from democratic politics does not seem to be an effective way to deal with the challenge of populism, and may end up making that challenge even more formidable, perhaps another way to defuse it is to somehow make the “real practice” of compromise more acceptable or legitimate in the eyes of citizens. This is how I read Baume and Novak’s contribution to this book. In their chapter, they highlight the “ambivalent appreciation” that compromise as a political principle often elicits: elevated as a founding principle of democracy by the likes of Barack Obama, but derided by many others as the “messy, the dreary stuff of day-to-day politics” (quoting Margalit 2010: 5–6). According to Baume and Novak, one of the main reasons for our ambivalent reaction to compromise is its perceived incompatibility with publicity, a belief that needs to be examined more closely. The result of their reassessment is nuanced: they show, for instance, that the belief that publicity necessarily rigidifies the behaviour of negotiators can turn out to be inaccurate in contexts where the negotiators themselves believe that their constituents would support a compromise. They also highlight the fact that some of the pressures that are thought to make compromise more difficult in public are also present behind closed doors (e.g. peer pressure) and warn their readers that the alleged incompatibility between publicity and compromise may be used to enforce secrecy and facilitate less than honourable behaviour among negotiators. The upshot is that if

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the tension between publicity and compromise is more context-dependent than has been previously recognized, then this opens the door to a closer examination of the concrete possibilities of compromise as a public activity, thus helping to weaken, at least to a degree, the populist argument against compromise as a legitimate democratic practice. If Baume and Novak rightly highlight the importance of the specific context in which the activity of compromise takes place, this does not provide a reason for fresh optimism if we consider that the social context of contemporary democracies is becoming increasingly polarized and generally inimical to the spirit of compromise. But this should perhaps lead us to take more seriously the concerns of citizens who are tempted by anti-system parties and attempt to enter into a real dialogue with those citizens. This is one conclusion that Bogaards draws at the end of his chapter. But if we are sincerely committed to the fundamental principles of political liberalism, including the idea of reasonable pluralism, how can we enter into a “real dialogue” with those who support policies that are incompatible with these principles? Would that not amount to compromising our own integrity? Should we not simply want to win against them and use any legal means available to us to deny them any success in implementing their preferred policies? These are timely questions to ask for supporters of liberal democracy in Europe as well as in North America. They raise issues that have become particularly important to me in the last year as the provincial government in Québec has succeeded in passing a law that makes it illegal for certain categories of public employees (e.g. teachers in public schools, police officers, crown prosecutors, etc.) to wear religious symbols at work.2 Its most immediate target is Muslim women who wear a head scarf: the law has the effect of denying them access to a considerable number of jobs in the public service. Though rejected by two opposition parties (the Liberal party, the main opposition party, and Québec Solidaire), as well as by some important public service unions and many groups in civil society, Bill 21 seems to be widely supported by the francophone majority, according to different opinion polls. The prospects for fruitful dialogue between supporters and critics of the ban look quite dismal as opinions  Loi sur la laïcité de l’État, LQ 2019, c-12.

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appear strongly set. Popular support for the new legislation is based on a number of concerns, among them common fears and prejudices about Islam, notably that it is a religion that enforces inequality between men and women. Interestingly enough, the government has presented Bill 21 as a moderate piece of legislation, a compromise between the position of the Liberals3 (who formed the previous government and have opposed bans on wearing religious symbols at work) and the Parti Québécois, which had proposed a more severe law during its short-lived tenure as a minority government in 2013–2014.4 The Legault government has also defended the law by using populist arguments: affirming the right of the Quebec people, via their National Assembly, to decide for themselves the kind of secular regime they want to live in and contesting the legitimacy of letting the courts decide whether or not this piece of legislation is compatible with the Canadian and the Québec charters of rights and freedoms. Returning to Bogaards’ concluding remark, it may be thought that these circumstances make it necessary to open a dialogue not so much on the law itself, which will appear to those who support liberal principles to be simply discriminatory, but on the worries that the law gives voice to concerning the meaning of religious symbols, in particular in relation to Islam. In other words, we should perhaps try to tackle the conflict not so much as an issue to be negotiated between political parties (i.e. aiming for some kind of compromise that would, say, deny judges and police officers the right to wear religious symbols while allowing teachers to do so), but as a question that should be resolved through what Dominik Gerber calls a “cultural compromise”. According to Gerber, this kind of compromise is involved “when two cultural groups who are divided at  The Liberal Party of Québec has opposed bans on the wearing of religious symbols though, when last in government, it secured the adoption of a law that prohibits people from covering their faces when providing or receiving public services. See Loi favorisant le respect de la neutralité religieuse de l’État et visant notamment à encadrer les demandes d’accommodements pour un motif religieux dans certains organismes, LQ 2017, c-19. 4  Projet de loi 60, Charte affirmant les valeurs de laïcité et de neutralité religieuse de l’État ainsi que d’égalité entre les femmes et les hommes et encadrant les demandes d’accommodements, 1ière sess, 40e lég, Québec, 2013. Bill 60 included a ban on the wearing of religious symbols, deemed by the state to be “ostentatious” , that was more extensive than the one included in Bill 21. If adopted, it would have also applied to the personnels of the public health system, social services, universities, and so on that are not covered by Bill 21. 3

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the level of symbolic understandings make an agreement that both regard as sub-optimal, but nonetheless preferable to the status quo”. Gerber adds that we should take compromise seriously as a way to resolve conflict “whenever the joint occurrence of deep symbolic disagreement both at the inter- and intra-cultural level thwarts the genesis of a shared substantive conception of rationality”. The disagreement over religious symbols faced by citizens in Québec as elsewhere satisfies these conditions: the disagreement is present both at the intercultural and at the intra-cultural levels, as supporters of the government’s position can point to the fact that some Muslim women do support their understanding of the symbolic meaning of the head scarf and are ready to speak publicly in favour of the law. And we do seem to be incapable of offering to each other a shared conception of reason that would lay to rest our disagreement. According to Gerber, we should consider cultural compromise as a “normatively appealing decision-making mechanism” in such cases because it satisfies the liberal principle of cultural pluralism and non-essentialism. It does so for two reasons: firstly, because compromise supposes that the parties accept that “other symbolic systems—traditions, rituals, customs, languages—possess a meaning which may not currently be intelligible given our available hermeneutical framework, but which may, in principle, be made intelligible by reciprocally adjusting existing frameworks”. Secondly, cultural compromise acknowledges the existence of intra-cultural dissent, thus eschewing any essentialist understanding of culture. Regarding such intra-cultural disagreement, Gerber points out that the legitimacy of cultural compromises depends on whether “the competing cultural interests originate in fair intra-cultural procedures”. Gerber’s account remains quite abstract: he does not provide any concrete example of what a cultural compromise would look like in practice. Still, his conception opens up many interesting avenues for discussion that I cannot hope to follow here. What I can do is highlight two difficulties that need to be dealt with if this kind of account is to help us in our present quandary. As Gerber points out, the first condition of cultural compromise is that the cultures involved in seeking a compromise must treat each other as hermeneutical peers. This seems to me quite right and reminds me of

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the way in which Charles Taylor has characterized cultural dialogue in many of his writings (Taylor 1998, 2011). The problem is that this premise is precisely what many citizens, belonging to the majority culture in today’s European or North American democracies, wish to deny. They— explicitly or implicitly—hold on to the belief of the superiority of Western cultures and of the ability of Westerners to tell members of other cultures what is the true meaning of the religious symbols they hold dear. Going back to the vexed issue of the head scarf, though many Muslim women have come forward to explain the specific meaning that they give to that practice, claiming that following that practice is their own autonomous choice, their voice has been negated by those who consider that they suffer from some kind of religious indoctrination or from the oppressive power of their family and community. The second difficulty is related to how the intra-cultural disagreements that do exist can be manipulated or used by hostile parties to lend support to their preferred interpretation of the meaning of another culture’s symbols. These remarks do not invalidate in any way Gerber’s important contribution. But they do indicate that our first task in making cultural compromise possible would be that of convincing citizens of the equal status of those who do not share the majority’s culture and of their capacity to act as hermeneutic peers in a dialogue on culture. These remarks also point to the need to think carefully about the appropriate criteria to assess cases of intra-cultural disagreements and compromises if we want to minimize the risks of manipulation I have alluded to above. These somewhat pessimistic remarks lead us back to the social context of contemporary democratic societies, which often appear hostile to dialogue and compromise, and where the majority seems increasingly ready to enforce its will through the significant power it holds within democratic forms of government. Though John Brewer’s chapter is devoted to the study of social compromise in the very different context of societies emerging from grave conflict, I have found his reflections to be stimulating. Brewer’s focus is on social compromise, on the practices that people develop in order to be able to live together peacefully in the aftermath of conflict and where “concessions form part of a shared social life”. I have found particularly inspiring his discussion of what he calls “compromise mediators”, that is mediating factors that make it easier for people to

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perform social compromise in public. One of the mediators presented by Brewer is hope, which he presents as both cognitive and sociological. On his view, hope “describes the cognitive process of anticipating some future desired state”, but it is also “materially affected by the social conditions that help sustain the anticipating”. In other words, “[f ]eelings of hope (that is, the capacity to anticipate) and the expectation of achieving goals in the future (personal and societal) will affect people’s capacity to compromise”. Without wanting to trivialize Brewer’s important account of social compromise in the context of post-conflict societies, it seems to me that we would do well to reflect on the functional equivalents of his compromise mediators in the quite different context of the “stable” democracies of Europe and North America. The rise of right-wing extremist parties in these countries is often related to the growing gap between rich and poor and the loss of hope that affects large sections of the population living at the periphery of affluent societies. To shore up practices of compromise in these settings, the first order of the day should be to attend to the factors that have caused the legitimate expectations of too many of our co-citizens to be consistently disappointed in recent decades. This would bring us back to the heart of democratic politics.

Bibliography

Akkerman, T., & Rooduijn, M. (2015). Pariahs or Partners? Inclusion and Exclusion of Radical Right Parties and the Effects on Their Policy Positions. Political Studies, 63(5), 1140–1157. Canovan, M. (2002). Taking Politics to the People: Populism as the Ideology of Democracy. In Y.  Mény & Y.  Surel (Eds.), Democracies and the Populist Challenge (pp. 25–44). New York: Palgrave. Capoccia, G. (2013). Militant Democracy: The Institutional Bases of Democratic Self-Preservation. Annual Review of Law and Social Science, 9, 207–226. Margalit, A. (2010). On Compromise and Rotten Compromises. Princeton: Princeton University Press. Mouffe, C. (2005). The ‘End of Politics’ and the Challenge of Right-Wing Populism. In F.  Panizza (Ed.), Populism and the Mirror of Democracy (pp. 50–71). London: Verso. Mudde, C. (2004). The Populist Zeitgeit. Government and Opposition, 39(4), 541–563. Taylor, C. (1998). Modes of Secularism. In R. Bhargava (Ed.), Secularism and Its Critics (pp. 31–70). Delhi: Oxford University Press. Taylor, C. (2011). Dilemmas and Connections. Selected Essays. Cambridge: Harvard University Press. Urbinati, N. (2013). The Populist Phenomenon. Raisons Politiques, 3(51), 137–154. © The Author(s) 2020 S. Baume, S. Novak (eds.), Compromises in Democracy, Palgrave Studies in Compromise after Conflict, https://doi.org/10.1007/978-3-030-40802-2

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Index1

A

Accommodation, 76–78, 87, 117, 150n3, 177, 209, 226 Accountability/accountable, 8, 10, 29, 70–74, 86, 88, 89 Agonism/agonistic compromise, 10, 98, 99, 104–109, 226 Aristocracy of merit, 22

204, 207, 214, 219, 220, 228, 232 Bellamy, Richard, 2, 4–6, 5n7, 8, 9, 52, 56, 60–63, 73, 99, 159 Bi-dimensional covenant, 22, 34, 41 C

B

Balance, 11, 30, 38, 48, 54, 87, 121–130, 133, 134, 138, 140, 145, 154, 155 Bargain/bargaining, 5–7, 55, 59, 79, 84, 116 Belgium, 75, 225 Belief, 7, 8, 14, 20, 73, 83, 84, 138, 139n14, 140, 141, 144, 155,

Chain of equivalence, 102, 103, 226 Choice, 6, 36, 125, 128, 129, 133–136, 134n8, 141, 144, 154, 161, 163, 185, 190n20, 204, 232 Civil society, 31–33, 210, 229 Coalition, 60, 75n5, 76, 78, 100, 101, 103, 110, 113, 176n4, 177, 178, 182, 184, 187, 190, 193, 225

 Note: Page numbers followed by ‘n’ refer to notes.

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237

238 Index

Commitment, 52, 55, 105, 107, 113, 179, 193, 216, 226 Compromise bare compromise, 6 deep compromise, 6 global compromise, 11, 146 honourable compromise, 4, 4n2, 87, 228 internal compromise, 11, 12, 204, 205 interpersonal compromise, 5 intra-personal compromise, 204 local compromise, 11, 146 moral compromise, 203–204 Pareto-improving compromise, 4 principled compromise, 3, 114, 121, 121n1, 130, 133, 134, 137, 154 rotten compromise, 203 sanguine compromise, 49, 123, 124 strategic compromise, 10, 75, 96, 109–115, 152 Concede/concessions, 5–7, 5n10, 9, 10, 13, 49, 70, 73, 74n3, 75, 76, 78, 83, 88, 97, 98, 103, 105, 106, 108–110, 112, 113, 115, 116, 187, 189, 202, 203, 205, 212, 213, 220, 232 Conflict conflicts of justice, 122, 137–140 post-conflict, 202, 208, 213–215, 218, 220, 233 symbolic conflict, 151, 153, 158 Consensus, 5, 6, 8, 9, 49, 53–56, 59, 63, 75, 75n5, 86, 88, 95–98,

101, 111, 113, 115, 136, 140–143, 145, 150, 152, 169, 170, 181, 186n17, 192, 193n22, 203, 204, 209, 226, 227 Consociationalism, 14, 176–178, 185, 189, 191 Constituency/constituents, 9, 10, 23, 27, 59, 60, 78, 80, 81, 83–86, 88, 228 Constitution/constitutional, 9, 27, 36, 37, 39, 51, 57–59, 63, 64, 70, 81, 82, 151, 155, 162, 163, 178, 180, 185 Cordon sanitaire, 12, 176, 180–182, 188, 190, 191, 193, 193n22, 227, 228 Corruption, 27, 39 Cultural pluralism, 150, 152, 154, 155, 169, 170, 231 D

Deal, 3, 10, 64, 81, 100, 103, 143, 151, 152, 159, 181, 228 Deliberation deliberative democracy, 13, 95, 97, 98, 104, 122, 191 deliberative theories, 104 Democracy consensus democracy, 8, 9, 49, 53, 54, 56, 63, 75, 75n5, 186n17, 226 consociational democracy, 12–14 democratisation, 7, 13, 14, 168n22, 201, 202, 205, 220

 Index 

liberal democracy, 53, 85, 151, 167, 179, 181, 185, 227, 229 majoritarian democracy, 8, 53, 75, 75n5, 226 militant democracy, 12, 14, 175, 176, 178–183, 185, 187–191, 227 representative democracy, 1, 14, 54 Disagreement, 5, 5n7, 10, 21, 49, 62, 73, 95, 98–100, 102, 103, 105, 106, 111–114, 116, 121, 130, 133, 139, 142, 143, 149–151, 153–155, 158, 165, 168, 168n20, 170, 203, 204, 206, 231, 232 moral disagreement, 52, 143 Dispute, 30, 101, 104, 109, 113, 139n14, 143, 144, 168, 169, 203 Divided society, 58, 177, 191, 206 E

Elections, 30, 51, 53, 56, 57, 61, 75n5, 181, 183, 185, 187, 190, 228 Emancipation, 105, 107, 113, 115, 116 Emotion, 205–211, 214, 219, 220 Empathy, 209, 218 Equality, 28, 30, 31, 37, 50, 51, 96, 97, 123, 128, 128n7, 129, 135n9, 157, 169, 192, 218 Ethics ethical conflict, 121, 122, 145 ethical justification, 122 European Union (EU), 57, 61, 70, 75, 85, 86

239

Exchange, 5n8, 41, 71, 73, 81, 83, 87, 180n8 Extremism, 179n7 extreme right, 12, 226–228 F

Fair/fairness, 4, 116–118, 124, 131, 132, 134–138, 144, 145, 153, 159, 201, 212–214, 216, 218, 220, 231 Federalism/Federalist, 23, 33, 38, 41 Flexibility/flexible, 85, 86, 179n7, 189, 209, 213 G

Gain, 55, 99, 102, 114, 135n9, 140, 209 Geertz, Clifford, 163, 164, 164n17, 166 Good Friday agreement/Belfast agreement, 193, 217 Grandstanding, 78 H

Hegemony, 100, 102–104, 106–108, 112, 115, 226 Human rights, 181, 203, 205, 218 I

Identity, 8, 12, 22, 29, 29n11, 35, 36, 40–42, 62, 82, 102, 103, 106, 107, 129, 149, 157, 160, 161, 168n20, 179, 192, 201, 204, 215–217

240 Index

Immigration, 41, 62, 183, 184n15, 186, 228 Impartial/impartiality, 24, 133, 138, 140, 141, 145 Incommensurability hermeneutical incommensurability, 155–158 incommensurables values, 11, 122–124, 127, 130, 133, 134, 137, 138, 140, 142, 143, 145 Inflexibility/inflexible, 84, 88 Interest, 4, 19, 20, 30, 31, 37, 49, 54, 58, 60–62, 77, 80, 83, 87, 96, 122, 122n2, 128, 137, 139–143, 145, 150, 152–154, 157–160, 166, 167, 169, 178, 193, 203, 207, 214, 226, 231 Issue-linkage, 83 J

Justice, 4, 33, 56, 117, 130, 134, 136–141, 140n15, 145, 146, 183, 203, 206, 218 K

Kelsen, Hans, 2, 5, 5n8, 73, 77 L

Language, 149, 151–153, 156, 178, 190–192, 193n22, 209–211, 219, 231 Law making/legislative process, 70, 75 Liberalism, 19, 20, 95, 168, 179, 180, 229

Lobbies, 83 Loss, 57, 97, 107, 129, 130, 140, 146, 168n22, 216, 233 M

Madison, James, 38, 70, 79 Majority absolute majority rule, 48, 51 majority rule, 8, 9, 14, 47–65, 143, 145, 219 majority voting, 35 supermajority rule, 9, 51, 57 tyranny of majority, 9, 47, 48, 62, 64, 69, 179 Mediation/mediator, 169, 188, 212–218, 220, 232, 233 Minorities, 2, 3, 4n3, 24, 39, 42, 48, 54–56, 59–64, 106, 108, 144, 149, 151, 155, 167, 180n8, 193n22, 230 protection of minorities, 9, 62 Moral, 11, 39, 52, 56, 62, 75, 107, 114–116, 123–125, 128, 134, 139, 142–144, 150, 151, 152n5, 154, 155, 160, 161, 167, 169, 180, 188, 203, 204, 214 Mouffe, Chantal, 2, 11, 77, 95–97, 99–105, 109, 111, 113, 179, 186, 225, 226 Multiculturalism, 150n3, 155, 164n16, 186 N

Nationalism, 182n13, 184, 184n15, 191n21, 204

 Index 

Negotiation, 2, 3, 13, 49, 57, 63, 64, 71n1, 80, 83–85, 97, 108, 110, 152, 158–160, 167–169, 187, 202, 225, 227 Nonessentialism, 151–153, 156–160, 162, 166, 170, 231 Northern Ireland, 13, 193, 193n22, 201–220 P

Parliament/parliamentary, 32, 36, 56, 57, 60, 61, 70, 76, 76n7, 178, 181, 187, 188, 190, 193, 193n22, 194 Partial/partiality, 4, 41, 49, 75, 139 Passion, 42, 82, 88, 211 Peace/pacification, 3, 12, 13, 29, 177, 192, 202, 203, 205, 209, 213, 217, 218, 220 People’s two bodies, 19–42, 21n2, 22n3, 27n8 Pluralism, 13, 52, 77, 100, 103, 105, 106, 122, 154, 155, 179, 185, 226, 229, 231 Plurality of preferences, 69 Polarization, 42, 60, 83, 85, 88, 191, 226 Political allies, 10, 104–110 Political opponents, 10, 101, 102, 104–110, 189 Political party, 41, 56, 77, 97, 101, 102, 113, 117, 177, 180, 194, 226–228, 230 political party ban, 176, 179, 180, 187, 227 Populism, 3n1, 19, 39, 41, 42, 101, 113, 183n14, 184, 185, 225–233 Pressure group, 88

241

Privacy/private, 7, 8, 28, 30, 32, 33, 71, 79, 81, 87, 88, 129, 137, 159, 167, 177, 204–207, 210–212, 219, 220 private sphere, 206, 210–213 Public/publicity, 6n12, 7–10, 12, 14, 25, 26, 28, 29, 31–33, 35, 40, 42, 48, 51, 52, 57–59, 69–89, 98, 103, 121, 135, 137, 143, 145, 149, 151–154, 164, 166–168, 170, 177, 180–182, 185, 189, 204–207, 210–212, 219, 220, 225, 228, 229, 230n3, 230n4, 233 public space, 151, 206, 207, 211, 213 Public reason, 11, 140, 150, 152, 170 Puritans, 23, 33, 34, 37, 40, 41 R

Radical/radicalism, 38, 108, 118, 153, 155, 156, 179n7, 183n14, 184, 185, 228 Reason, 2–4, 8, 9, 20, 31, 32, 35, 37, 40, 42, 55, 61–63, 71, 74, 75, 78–80, 82, 83, 85, 88, 99, 101, 104, 107, 113–116, 123, 132–134, 134n8, 139–145, 139n14, 152n5, 154, 155, 158, 176, 176n4, 181, 182n13, 184, 192, 193n22, 209, 212, 228, 229, 231 rational justification, 128 Reciprocal/reciprocity, 13, 73, 114, 201, 202, 206, 207, 209, 212–214, 216, 220 Reconciliation, 123, 130, 136, 146, 202

242 Index

Referendum, 8, 50, 53, 56–61, 63, 185, 226, 227 Religion/religious, 35, 37, 39, 41, 42, 48, 102, 106, 149–151, 164, 177, 178, 203, 211, 216, 217, 229–232, 230n3, 230n4 Republican/republicanism, 19, 20, 23, 23n7, 24, 39, 41

Trade-off, 11, 20, 71, 121–123, 127, 128, 130, 133, 134, 137, 154, 159 Transitional/transitional justice/ transitional society, 201, 202 Transparency/transparent, 71–73, 152 Trust, 9, 33, 35, 64, 210, 212, 214–216, 220 Tully, James, 99, 104, 105, 107, 151, 156

S

Sacrifice, 20, 129, 130 Secrecy/secret, 36, 70, 78–80, 82, 84, 86–89, 188, 228 Shared society, 13, 202, 232 Social compact, 36, 41 Social compromise, 13, 14, 201–220, 232, 233 South Africa, 13, 169, 201–220 Sri Lanka, 201–220 Surrender, 74n3, 160, 201 Switzerland, 60, 61, 151, 177 Symbols, 11, 12, 151, 153, 156, 157, 163–165, 167–169, 229–232, 230n3, 230n4 T

Tocqueville, Alexis de, 31, 38, 47, 48, 50, 51, 61–64, 80 Tolerance/toleration, 13, 39, 154n6, 182, 188, 191, 206, 207, 209–212, 220

U

US Congress, 70, 83 V

Values, 2, 3n1, 4, 6, 8, 11–13, 52, 56, 63, 70, 74, 76n6, 77, 82, 83, 85, 108, 114–116, 121–146, 149, 154, 155, 163, 170, 190, 203–205, 207, 220 liberal values, 12 Victim, 201–220 Violence, 13, 100, 162, 178, 179, 202, 205, 214, 215, 217–220, 227 Vote/voting, 20, 28, 40, 41, 48–51, 57, 59, 61, 63, 82, 83, 86, 143, 186n17, 193, 194, 227 W

War, 4n3, 33, 40, 150