Deliberative Democracy in Practice [1 ed.] 9780774816793, 9780774816779

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Deliberative Democracy in Practice

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Edited by David Kahane, Daniel Weinstock, Dominique Leydet, and Melissa Williams

Deliberative Democracy in Practice

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© UBC Press 2010 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without prior written permission of the publisher, or, in Canada, in the case of photocopying or other reprographic copying, a licence from Access Copyright (Canadian Copyright Licensing Agency), www.accesscopyright.ca. 21 20 19 18 17 16 15 14 13 12 11 10   5 4 3 2 1 Printed in Canada with vegetable-based inks on FSC-certified ancient-forest-free paper (100% post-consumer recycled) that is processed chlorine- and acid-free. Library and Archives Canada Cataloguing in Publication Deliberative democracy in practice / edited by David Kahane ... [et al.]. Includes bibliographical references and index. ISBN 978-0-7748-1677-9 1. Deliberative democracy. I. Kahane, David J. (David Joshua), 1962JC423.D418 2009           321.8           C2009-904200-2

UBC Press gratefully acknowledges the financial support for our publishing program of the Government of Canada through the Book Publishing Industry Development Program (BPIDP), and of the Canada Council for the Arts, and the British Columbia Arts Council. This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Aid to Scholarly Publications Programme, using funds provided by the Social Sciences and Humanities Research Council of Canada. Printed and bound in Canada by Friesens Set in Stone by Artegraphica Design Co. Ltd. Copy editor: Dallas Harrison Proofreader: Stephanie VanderMeulen Indexer: Noeline Bridge UBC Press The University of British Columbia 2029 West Mall Vancouver, BC V6T 1Z2 604-822-5959 / Fax: 604-822-6083 www.ubcpress.ca

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Contents

Introduction / 1 Daniel Weinstock and David Kahane Part 1: Educating Deliberative Citizens

1 Conceptions of the Good: Challenging the Premises of Deliberative Democracy / 21 Micheline Milot



2 Religious Belief, Religious Schooling, and the Demands of Reciprocity / 35 Harry Brighouse

3 Religious Education and Democratic Character / 54 Paul Weithman Part 2: Deliberative Democracy, Constitutions, and the Boundaries of Deliberation 4 Open versus Closed Constitutional Negotiation / 77 Simone Chambers 5 Is Democracy a Means to Global Justice? / 92 James Bohman Part 3: Deliberative Democracy and Indigenous Peoples 6 Deliberative Democracy and the Politics of Reconciliation / 115 Duncan Ivison 7 Resisting Culture: Seyla Benhabib’s Deliberative Approach to the Politics of Recognition in Colonial Contexts / 138 Glen Coulthard



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vi Contents

8 The Implications of Incommensurability for Deliberative Democracy / 155 Jorge M. Valadez

Part 4: Citizen Dialogue and Decision Making in a Deliberative Democracy

9 Public Opinion and Popular Will / 177 Henry S. Richardson 10 Consulting the Public Thoughtfully: Prospects for Deliberative Democracy / 194 James Fishkin



11 The Micropolitics of Deliberation: Beyond Argumentation to Recognition and Justice / 209 John Forester and David Kahane References / 232



Contributors / 244 Index / 247

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Introduction Daniel Weinstock and David Kahane

Deliberative democracy has emerged in recent years as one of the dominant research paradigms in normative political philosophy. Many contemporary political theorists claim to be deliberative democrats, yet there are vast areas of disagreement among them. Despite their differences, deliberative democrats are united in their commitment to two general theses: (1) A thesis about democracy: that democracy should be understood as the exchange of reasons rather than merely as the confrontation of contending interests; (2) a thesis about liberal democracy: that the justification of policies in liberal democracies should be more democratic. These two theses are pitched at a high level of generality. Our first order of business will therefore be to unpack them. Deliberative Democracy as Democracy North American political science has long been dominated by what has come to be called the “pluralist” account of democratic politics. On this view, democratic politics is principally about the attempts by interest groups to place pressure on political elites in order to realize their interests to the greatest degree possible (Dahl 1998; see Cunningham 2001). This model is distinguished from deliberative democracy by three main features. 1

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Democracy is perceived as a causal rather than a rational process. Different groups use what force they can muster and attempt to apply it as efficiently as possible to the appropriate institutional levers. Policy outcomes are thought not to emerge, at their best, from an impartial point of view but as the mechanical result of contending forces. The interests brought to bear in the democratic arena are pre-politically formed. We come to the democratic table with a clear and complete conception of what our interests are, and these interests are formed in abstraction from the interests of others. No attempt is made by citizens or by those who represent their interests to think about policy from the perspective of the general will. The general will, rather, is conceived as

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the unintended consequence of the confrontation of rival interest groups. Democratic politics is thought of as driven by elites. Citizens engage in the democratic process by applying pressure on elites rather than by themselves engaging in the decision-making process.

Against this dominant, pluralist view, deliberative democrats have urged that democracy be thought of as crucially involving the exchange of reasons. Participants in the democratic process should aim at a result that reflects not the balance of contending forces and political skills but the force of the better argument (Cohen 1989). Reasons are seen as excluding the naked expression of individual or group interests, taken simply as such. An attempt has to be made to persuade one’s democratic partners, and this requires that one put forward considerations that they can accept at least in principle; often deliberative democrats have taken this commitment reasoned persuasion to suggest that public reasons must not appeal to controversial conceptions of the good life. Citizens must evince “reciprocity” in their dealings, putting forward arguments that can be expected to move the democratic process toward consensus (Gutmann and Thompson 1996). Deliberative democrats have also urged that participation in the democratic process should be civic minded rather than “privatistic.” That is, participants should not enter the democratic arena with a fully formed conception of the positions they will ultimately pursue. They should allow themselves to be swayed by the arguments of others and attempt to view the political agenda from a vantage point that encompasses the interests of all. Finally, deliberative democrats tend to advocate an active conception of citizenship, whereby democratic politics is not the sole preserve of elites. Deliberative democrats disagree about the specific reasons that make participation important. Some claim that participation in the democratic process by ordinary citizens is an intrinsic good. Others have argued that, though there is no intrinsic good served by participation, the legitimation and justification of policies requires deliberation reaching beyond traditional elite circles. They also disagree about the specific form that participation should take. Some have argued that the democratic sphere should be reformed to give citizens direct access to decision-making processes. Others have argued that institutional mechanisms must be devised to give political weight to the deliberation that takes place outside the formal decisionmaking arena. Deliberative Democracy as Justification Liberal political theory, which has been dominant in Anglo-American political philosophy, has been associated, among other things, with a thesis about the moral justification of policies. Liberals have often made use of

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contractual reasoning to get the justificatory story started. John Rawls (2001a) offers the most famous contractual argument, asking us to imagine which fundamental principles would be agreed on by appropriately circumstanced individuals deliberating on the terms of their association. Individuals are appropriately circumstanced when their choice situation embodies the moral principles that we think, on due reflection, ought to constrain the selection of principles governing the basic structure of society. The principles arrived at constrain law making and policy making and even the choice of constitutional structures and principles. There is an intimate connection between the liberal contractualist project and the practice of judicial review. Indeed, if the principles that emerge from the contractualist argument are to have the weight that liberals attribute to them, they must be appropriately institutionalized, and the judicial review of legislation provides the appropriate institutional form. Judges have the authority to block legislation that does not conform to the principles. The democratic legitimacy of judicial review is grounded in principles that encapsulate the considered convictions of the people of a liberal democracy. Ronald Dworkin, another leading liberal theorist, though he officially claims to be opposed to contractualist reasoning, is clearly in agreement with the liberal contractualist argument when he claims that courts, rather than the democratic arena, should be thought of as the “forum of principle” (Dworkin 1985). Deliberative democrats have contested the liberal project of identifying moral principles that, once embodied in an appropriate choice situation, can generate governing political principles to which all reasonable citizens can agree. Reasonable moral pluralism is deeper than liberals have tended to assume, and it does not conveniently limit itself to non-political matters. The reasonable comprehensive conceptions of the good life that citizens affirm often have deep implications for the manner in which the polity ought to be governed. In the absence of a framework of political norms sufficiently robust and substantive to generate principles to govern the operation of society’s main political and economic institutions, deliberation is the way forward. In a nutshell, if no antecedent agreement on political first principles can be expected in a reasonably diverse society given citizens’ very different conceptions of the good, the only way the required kind of agreement can be reached is through discussion. The hope is that citizens of diverse creeds deliberating in good faith will be able to come up with creative ways of bridging their differences that could not simply be inferred from placing their comprehensive doctrines side by side and looking for areas of overlap and compatibility. Described in this way, the justificatory claims made by deliberative democrats are an extension of the liberal project. It is unsurprising, therefore, that

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many theorists who embrace deliberative democracy because it fills a lacuna in liberal theory have incorporated a number of recognizably liberal substantive norms into their conceptions of deliberation. Amy Gutmann and Dennis Thompson (1996) have famously argued that the results of deliberation should be consistent with standard liberal commitments to liberty and opportunity. They have also argued that deliberating citizens should follow, in their dealings with one another, a principle of “reciprocity,” whereby they abstain from invoking controversial arguments drawn from their particular conceptions of the good. Instead, they should make use of the resources of public reason. Many have found fault with this way of stacking the deliberative deck in favour of liberal outcomes. Although not necessarily dissenting from liberal principles per se, many have wondered whether variants of deliberative democracy such as Gutmann and Thompson’s are really deliberative at all, since outcomes seem to be generated by the constraints on deliberation as much as by deliberation itself. An alternative model of deliberative democracy has emerged alongside the model derived from the liberal project. Although it shares the latter’s concern with reason giving, it adopts a much more capacious conception of allowable reasons. The constraints that it places on deliberation are procedural rather than substantive. The theorist most often associated with this view is German philosopher Jürgen Habermas. In his work, deliberative democracy is part of a larger, much more ambitious, project to do with the role of communication, and with the gradual overcoming of obstacles to communication, as a principal driver of human historical development (Habermas 1985, 1988). In Habermas’ view, successful communication assumes that interlocutors are governed by a number of moral or quasi-moral norms. Communication could simply not take place without a presumption on all parts that interlocutors are committed to norms of sincerity, truth telling, and the like. We can imagine an “ideal speech situation” in which these norms are perfectly realized, and all mundane communication implicitly refers to this ideal. The ideal speech situation forms the basis of a species of moral contractualism, wherein norms are valid to the degree that they could be affirmed by all within a discourse that met all of the requirements of ideal speech. Habermas views much political struggle as having to do with the emancipation of communication from other logics that threaten to drown it out. His oftrepeated but poorly understood phrase “the colonization of the life-world” refers to his concerns that areas of human moral life whose norms ought to be derived from unfettered communication have in fact been taken over by economic and technological imperatives and that political action must, to a large degree, be focused on reclaiming the life-world from the grips of noncommunicative forces.

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The Habermasian model overcomes some of the difficulties associated with the liberal one in that it does not overdetermine the substantive results of deliberation. However, it introduces problems of its own. In particular, liberals, as well as deliberative democrats of a liberal bent, have worried about the tendency of a democratic process unfettered by substantive principles to generate illiberal results. The concern is that purely procedural constraints, for example on agenda setting, turn-taking, and sincerity, will be insufficient to prevent the tyranny of the majority. Placing as much moral weight as Habermas does on communication might make sense from within the context of a theory that views the liberation of communication as an engine of human emancipation. But deliberative democrats who want to detach deliberative democracy from his broader historical account clearly need a response to the concerns just noted. Interestingly, Habermas himself (1996) now views individual rights and the kinds of constitutionalism and judicial review that they ground on the one hand and democratic deliberation on the other as “co-originating” in a fundamental moral commitment to human autonomy. Deliberative Democratic Challenges Deliberative democracy has been put forward as a way of dealing with problems with democratic theory and practice as well as with liberal modes of justification of laws and constitutional principles. As is probably inevitable for a theory put forth to address separate agendas in political philosophy, deliberative democracy has yet to achieve full theoretical maturity. A particularly acute problem has to do with tensions in the account of deliberation itself. On the one hand, deliberative democracy’s opposition to the kind of interest brokering and horse trading that normally occurs in democratic forums, and for which the pluralist paradigm has provided some theoretical underpinning, pushes the theory toward a rather “thick” conception of deliberation. As we have seen, to ensure that purely interest-driven politics is ruled out, deliberative democracy saddles participants in deliberation with substantial constraints. They must speak the language of “public reason,” avoiding tying the reasons they put forth too tightly to their particular conceptions of the good life so as to enable consensus, where consensus means a shared conception of what the common good requires. On the other hand, deliberative democrats’ aim of surpassing traditional liberalism in how they deal with pluralism pushes in another direction. Citizens with radically different conceptions of the good need not repair in their deliberations to a “neutral” public reason. Indeed, the attempt to define the contents of such a public language would stumble, like the liberal project before it, on the impossibility of defining a set of normative principles that all reasonable citizens can agree on, whatever their conceptions

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of the good life. Citizens instead need a disposition to identify possible compromises rather than prolong conflict. They must stand ready to argue with one another on the basis of, rather than in abstraction from, their comprehensive conceptions. Only in so doing will they be able to arrive at agreements, because only in this way will they be able to identify what is really at issue between them. What’s more, a deliberative democratic theory that took pluralism seriously would be much more inclined to view compromise, rather than consensus, as a natural end of deliberation. It would therefore invest its theoretical energy in distinguishing morally acceptable compromises from ones that threaten participants’ integrity. Making such a distinction might involve exploring the normative potential of democratic practices that those emphasizing reason giving and consensus relegated to the seamier margins of deliberative democratic theory, such as horse trading and interest brokering. To achieve full theoretical maturity, theorists working within the paradigm will have to address the tensions that result from deliberative democracy’s sometimes duelling sets of desiderata. They will also have to address a range of issues having to do with what one might call the real world of deliberative democracy – and these are the issues that constitute the focus of the chapters in this volume. Questions persist about some of the empirical assumptions implicit in the theory. For example, many deliberative democrats are impressed by the pluralism of conceptions of the good and of worldviews in modern societies. But it is striking that this pluralism is typically characterized by political theorists in a highly abstract way. According to this characterization, at issue are “comprehensive conceptions of the good” often presented as if they are rival philosophical theories, whereas what is most often at stake in the real world of modern liberal democracies is a plurality of ways of life, experiences, and traditions, which are difficult to spell out in terms of explicit “comprehensive conceptions.” How would a more realistic view of social pluralism inflect the project of deliberative democracy when, for example, it comes to the deeply divergent meanings of culture and membership that can obtain between indigenous and non-indigenous citizens of settler societies? And how adequately can deliberative democratic theory address the interfusion of deep cultural differences with differences in social power in order to frame principles of deliberation that can justly address conflicts between, say, indigenous and non-indigenous peoples in settler states? Deliberative democracy is also, at this early stage in its development, institutionally underdescribed. Much still needs to be said about the political education of deliberative democratic citizens. Deliberative democracy, whatever its precise form, places new and greater demands on citizens than traditional liberal democracy, which at least required citizens to be generally law abiding and respectful of others and at most required citizens’ constant

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vigilance of political elites. Deliberative democracy in almost all of its forms requires a more active citizenry and one with crucial dispositions, aptitudes, and virtues. Deliberative democratic citizens must be disposed to seek agreement with other citizens, possess deliberative traits that facilitate this process, and adopt a questioning, potentially critical, attitude toward their own conceptions of the good. Plainly, the development of the deliberative democratic personality requires an ambitious educational project. How does a full reckoning with the requirements of deliberative democracy change educational theory and practice? And, finally, what of the institutions of deliberative democracy themselves? The idea of a deliberative democracy, especially one in which ordinary citizens play an active role, runs quickly up against the limits imposed by the sheer size of modern mass societies. As Robert Dahl has shown in an oft-cited back-of-the-envelope calculation (Dahl and Tufte 1973), meaningful deliberative input by all members of a small society on even a fairly uncomplicated item of policy would stretch democracy’s time constraints beyond the breaking point. Which institutional devices can accommodate meaningful deliberation without ignoring real-world, temporal constraints? Moreover, deliberative democrats need to explain the relationship between the institutions of deliberation, whatever they end up looking like, and the already existing institutional order. In particular, what is the place of liberal constitutional practices in a deliberative democratic order? Deliberative democracy seems to face an unattractive dilemma: either the animus against controversial liberal principles enforced by a non-neutral institution such as the court is taken to its logical extreme, in which case deliberative democracy seems to have insufficient safeguards against the tyranny of the majority, or (perhaps to forestall such an objection) deliberative democracy constrains outcomes with the familiar liberal protections of minority and individual rights and equal opportunity, thus differing from liberal constitutionalism only in how it institutionalizes liberal principles. A premise underlying the selection of themes and essays for this volume is that, beyond a certain point, progress on foundational philosophical issues cannot be achieved without attending to more concrete questions of institutional realization and implementation. In other words, context matters. The chapters in this volume all join in debates central to the development of deliberative democratic theory. Which traits of character does the ideal deliberator possess, and what should the role of the state, via the institution of public schools, be in inculcating them? Is constitutionalism a help or a hindrance to the achievement of a truly deliberative polity? How can deliberative democratic ideals be instantiated in societies that are both culturally divided and still deeply affected by the injustices of a colonial past (and, some would argue, present)? How is deliberation affected in concrete settings by the different tasks with which deliberators can be presented? Does it make

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a difference to deliberation whether deliberative forums are mandated to consult or to decide? Deliberative Democracy in Practice: Key Themes The chapters in this volume speak to one another across themes by illuminating core concepts and debates within deliberative democratic theory from distinct and hopefully complementary contexts of application. Before going into a detailed description of each section, we would like to foreground some of the most important cross-cutting themes. A first theme around which debate is joined among various chapters has to do with the very purpose of deliberative democracy. As we have noted, deliberative democracy is seen by proponents of both the liberal and Habermasian traditions as motivated by value pluralism. From this view, we need deliberative institutions rather than paradigmatically liberal ones because only by deliberating will we be able to overcome our moral and ethical differences. The chapters in Part 1 take up the task of determining the traits of character required to deliberate in a polity marked by value pluralism, and articulate how schools can foster these traits. But what if some conflicts arise not from disagreement about values but from irreducibly political conflict? Attending to the conditions of deliberative democratic politics in divided societies forces this question to our attention, as is made plain by the chapters that focus on the politics of settler societies. The chapters in Parts 1 and 2 articulate a range of obstacles to deliberative communication and agreement, with different degrees of optimism about the epistemic and political possibilities for deliberative engagement across deep social and cultural differences. The issue of deliberative engagement across deep differences leads straight to a second cross-cutting theme, to do with the characterization of the virtues necessary in a deliberative polity. If value pluralism is in fact at the heart of political disagreement, as some of the chapters in this volume assume, then the virtues of reflexivity, reciprocity, and “distanciation” with respect to one’s own values really are required. But these virtues may be less essential when conflict is viewed as a clash of political interests, as other chapters emphasize; indeed, where disputes are grounded in political conflict rather than value pluralism, the call to abstract from one’s conception of the good, or from individual and community interests, can seem like a pernicious move in a political game. What better way for a hegemonic group to entrench its power than by requiring that subaltern groups not pursue their interests or their conceptions of the good within deliberative settings? Other chapters, notably those of Fishkin and Richardson, suggest that institutional context is as important as subject matter in determining the traits of character that deliberators manifest or ought to manifest. Deliberation, after all, occurs not

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in the abstract but in concrete institutional contexts. These contexts orient deliberation by providing it with specific tasks; deliberation can aim for a binding decision or, much more modestly, it can aim to provide decision makers with (non-binding) input. These different tasks of deliberation affect the moral psychology of participants, the delineation of appropriate virtues, and the mechanisms needed to inculcate these virtues. A third and final cross-cutting theme has to do with the appropriate location of deliberation. Taken at the most abstract level, deliberation brings those affected together to decide about the common good. But where is this most appropriately done? In the informal public sphere? By proxy, through the activity of representatives within legislative institutions? Within specially designed deliberative settings such as citizen juries and deliberative polls? And how should deliberative democrats address boundaries that often are taken to constitute deliberative spaces, be they constitutional principles that define the democratic institutions of a nation or the borders that define who is permitted to take part in the decision-making procedures of a demos? The chapters in this volume broach these questions of location through a number of different cases and concerns, ranging from the role of publicity in constitutional negotiations, to the principles and institutions that should govern relationships between democratic jurisdictions, to the grounds for deliberative encounter between indigenous peoples and settler states. We believe that, in addressing crucial issues within what we have termed “the real world of deliberative democracy,” the chapters in this volume also tackle more foundational issues where advances are needed for the field to achieve theoretical maturity. Part 1: Educating Deliberative Citizens The first set of chapters deals with two deeply interrelated questions. First, which traits of character must citizens have for democratic politics to be characterized by deliberation rather than confrontation? Deliberative democracy clearly places moral demands on citizens. They cannot simply press their self-interest but must be willing to exchange reasons with their fellow citizens and to accept that the force of the better argument – the “balance of reasons” – might lead to outcomes less favourable to their interests than could have been obtained through a more confrontational politics. According to some theorists, deliberation gives rise to a reconceptualization of citizens’ interests, such that this gap between argument and interest is less likely to occur. But we must remain alive to the possibility that deliberative democratic politics will sometimes mean citizens doing less well by the standard of their narrow self-interest or their conception of the good than might otherwise have been the case, and we must describe the kind of moral psychology that would keep this from being politically destabilizing.

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So deliberative democracy requires that citizens respectfully attend to the reasons adduced by their fellow citizens for positions to which they are sometimes deeply opposed. It requires that they be able to accept outcomes that are often at odds with their convictions. And it probably therefore also asks of citizens that they adopt a more detached, questioning perspective toward these convictions than they adopt in their everyday lives. Certain commitments must be up for grabs, at least to some degree, if deliberation is to give rise to stable consensus and compromise. Describing this sort of deliberative democratic moral psychology is no simple task. It leads to a second crucial question: What educational principles and practices can produce the requisite deliberative virtues and traits of character? The chapters by Micheline Milot, Harry Brighouse, and Paul Weithman demonstrate that there are no easy answers to these questions of moral psychology and educational principles. In “Conceptions of the Good: Challenging the Premises of Deliberative Democracy,” Milot puts forward what might be called the standard deliberative democratic case for a public school agenda aimed at inculcating in children character traits that enable them to take part in democratic debate with citizens who do not share their religious or moral conceptions of the good life. She argues that traits such as reciprocity and reflexivity are indeed necessary to democratic debate in a pluralist society, and she holds that families, and private schools modelled after the particular conceptions held by families, cannot be entrusted with this pedagogical task. It is not an excessive constraint, she argues, to attempt to inculcate these traits, defined in a moderate way, even in children whose families do not hold liberal values. Brighouse and Weithman respectively contest both prongs of the standard deliberative democratic case put forward by Milot. In “Religious Belief, Religious Schooling, and the Demands of Reciprocity,” Brighouse agrees that reflexivity and open-mindedness are important deliberative democratic tools; however, he argues that educational theorists should be consequentialist about these values and endorse any educational arrangement, including religious schools, that tends to promote them. It is wrong, in his view, to assume a priori that religious schools cannot effectively promote deliberative traits. Weithman’s challenge to the basic deliberative democratic case is more fundamental because it attacks its foundational premise. In “Religious Education and Democratic Character,” he argues that a widely accepted assumption about deliberative character – that it involves a disposition to comply with requirements of publicity or accessibility of reasons when deliberating with citizens about political outcomes – is unsustainable and that a principled deliberative democratic resistance to religious school curricula is therefore mistaken.

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Part 2: Deliberative Democracy, Constitutions, and the Boundaries of Deliberation As already noted, there seems to be a tension between the claims of deliberative democracy and those of constitutionalism: The latter purports to take certain issues and principles off the political agenda once and for all, while the former privileges citizens’ capacity to examine and reconsider even their most fundamental political decisions. There are at least two strategies that tackle this apparent tension, and both are explored in the chapters in this section. The first strategy presents the constitution itself as securing the conditions essential to public deliberation. In particular, many of the rights and liberties guaranteed in liberal constitutions can be seen as necessary conditions for deliberation. Stephen Holmes and Cass Sunstein, among others, have defended the democratic character of liberal constitutions in this way, viewing them as essential devices through which the people tie their own hands so as to “deliberate effectively and act consistently” (Holmes 1995, 167; see also Sunstein 2001, 6-7). From this perspective, the relevant question is about the minimum standards that enable a constitution to fulfill this role. There is wide consensus that a constitution should include basic rights and liberties (freedom of association, freedom of expression, etc.) that have an obvious link to the formation of the collective political will, and there is debate about whether this requirement would also cover rights and liberties less directly connected to political life. Joshua Cohen, for instance, has argued that freedom of religion would also necessarily be protected since disregarding the obligations that religious belief imposes on believers, on grounds that they could not recognize as compelling, would amount to a denial of their equal standing in political deliberation (1996, 103). While addressing important issues, such discussions ignore a crucial fact. When viewed as an enabling device for democratic deliberation, constitutionalism faces seemingly insuperable problems in the context of multinational and/or transnational states. A central premise of modern constitutionalism is that the demos is unified, but this premise is incompatible with the internal diversity of multinational states and of expanding forms of transnational governance. Multinational states appear to contain a plurality of democratic polities: How, then, might their constitutions help create a deliberative community in which citizens are connected across national boundaries rather than merely within the boundaries of single national groups? In “Is Democracy a Means to Global Justice?” James Bohman argues that constitutions for both multinational states and transnational polities must ensure the democratic minimum for all citizens, regardless of the demos to which they belong. In other words, citizens at all levels of a federal or transnational structure must be able to initiate deliberation and

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the decision-making processes that follow. Such a democratic minimum, Bohman argues, could remain unfulfilled not only because individuals and groups are dominated by non-democratic means but also because they are dominated democratically. To the extent that the demos of one unit lacks the normative power to initiate deliberation that involves other demoi, it is subordinated to them. The second strategy to lessen the tension between democracy and constitutionalism is to make the constitution itself the object of public deliberation and thereby strengthen its claim to democratic legitimacy. James Tully (1994, 69) has identified an aporia in modern constitutionalism: “A modern constitution comes into being at some founding moment and stands behind – and provides the rules for – democratic politics ... [It] thus appears as the precondition of democracy, rather than a part of democracy.” This may not have been a problem in the eighteenth century, but clearly – and here recent European and Canadian histories are instructive – it poses extremely difficult issues for contemporary democratic polities. Indeed, even though a constitutional text includes all the right features to secure the conditions of deliberative democracy, it might still enjoy only weak legitimacy if the process through which it was written is deemed insufficiently open. But this raises a new set of questions. What form should the constitutionmaking process take to satisfy the requirements of public deliberation? In particular, do the norms that on most accounts structure deliberative forums suit constitutional negotiation? Here deliberative theorists must face difficult issues about the applicability of the deliberative model in mass democracies, where potential tensions between its deliberative and democratic components come into the open. How should the requirements of publicity be interpreted in this context? In “Open versus Closed Constitutional Negotiation,” Simone Chambers, like others (Elster 1995; Gutmann and Thompson 1996), recognizes that publicity can sometimes have perverse effects and that it is not an unqualified boon to constitutional negotiation. In some contexts, she stresses, publicity encourages public reason in the normative sense, but in others it can lead to grandstanding and “playing to the cameras.” She introduces the concept of “plebiscitary reason” to characterize the deleterious effects of publicity, particularly in contexts where a mass public stands in an asymmetrical relation to speakers who use manipulation, pandering, and image maintenance to achieve their ends. Deliberative democrats have a tendency to respond to the dangers of plebiscitary reason through two methods of avoidance: one for elites and one for ordinary citizens. In the first case, authors recognize the need for framers to retreat behind closed doors to negotiate particularly delicate issues. In the second, small deliberative safe havens such as deliberative opinion polls and citizen assemblies are welcomed as fostering the use of public reason. Democratic and deliberative moments are linked in a sequential

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model in which open democratic ratification involving large groups follows instances of small closed debate. The originality of Chambers’ contribution to this discussion is her interest in a non-sequential model of constitutional discussion, which explores the possibility of joining the deliberative and democratic moments in one conversation. This entails the need, as Chambers points out, to confront “plebiscitary reason head-on,” first by conceptually distinguishing between the different ways in which plebiscitary reason and private reason threaten deliberation, and second by sketching an account of deliberative rhetoric against which we can criticize speeches and orators as well as the media. One might wonder whether the two strategies outlined here are not mutually exclusive. The first affirms that the idea of public deliberation requires the protection of specific rights and liberties in the constitution, essentially tying the hands of the people(s), whereas the second wants to submit the process of formulation of these rights and liberties to public deliberation. But as John Dryzek has argued, this problem is more apparent than real if one considers that framers could deliberate about the meaning of specific rights and their relation to each other, or about different institutional means to protect them, while agreeing that doing without such rights is not an option. To quote Dryzek, if it is the case “that the very idea of deliberation requires such rights, then any participant in constitution-making could only argue against them by engaging in a performative contradiction” (2000, 16). Part 3: Deliberative Democracy and Indigenous Peoples Bringing deliberative theory to bear on questions of justice toward indigenous peoples in settler societies such as Canada, the United States, Australia, and New Zealand is rewarding for several reasons. Deliberative democratic theory is first and foremost an account of political legitimacy, and there are few more profound challenges to the legitimacy of settler societies’ political and legal arrangements than those raised from the perspective of indigenous peoples. Thus, for those seeking to understand what would constitute a just and legitimate political-legal arrangement between indigenous and nonindigenous populations within such societies, deliberative theory appears promising. Furthermore, once we undertake such an inquiry, it quickly becomes evident that some of the most difficult unresolved questions in deliberative theory are brought into sharp relief by cases involving relationships between indigenous and non-indigenous peoples. Theories of deliberative democracy hold out the promise that democratic deliberation can narrow the range of political disagreements not only in contexts of moral and religious pluralism (or the pluralism of what Rawls [1996] refers to as “comprehensive conceptions of the good”) but also in contexts of cultural pluralism. Fundamentally at issue is the question of which reasons should count as public reasons in deliberative exchanges.

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Although Habermasian versions of deliberative democracy (in contrast with some Rawlsian variants) eschew any a priori distinction between public and non-public reasons, deliberative theory has not yet developed to the point at which it can guide us when an authoritative reason from within one ethical or cultural perspective is not recognized as a reason – let alone an authoritative reason – from the ethical standpoints of other parties to deliberation (Benhabib 2002, 133-46; Valadez 2001; Williams 2000). Conflicts between indigenous communities and non-indigenous settler societies present us with profound cases of such disagreement, where differences penetrate even to such fundamental questions of ontology as humans’ relationship to the Earth and to other species. At its best, deliberative exchange may narrow the range of such disagreements, to the extent that different parties seek to enter into one another’s worldviews for the sake of mutual understanding. Furthermore, deliberation may sometimes make it possible to discover analogies or parallels between cultures, thus making shared moral reasoning possible. Yet these two processes – what Jorge M. Valadez calls “familiarization” and “translation” – may not be sufficient to bridge the cultural divide altogether. In other words, Valadez argues, there are cases in which cultural worldviews are simply incommensurable. In “The Implications of Incommensurability for Deliberative Democracy,” he argues that the deliberative democratic requirement that public reasoning should proceed on the basis of shared moral reasons fails to take seriously the incommensurability that sometimes exists between groups, in particular between colonized indigenous groups and members of the non-indigenous majority. Valadez examines political exchanges between the Zapatistas of southern Mexico and the Mexican government, showing how the incommensurability of the political discourses of these two groups makes evident the impossibility of establishing agreement on the basis of common reasons. In such circumstances, he argues, deliberative theory should be willing to acknowledge that uncoerced agreement is morally desirable even if it is grounded in reasons that are substantively different for the groups involved. The case of the Zapatistas also makes clear that conflicts between indigenous groups and the modern (colonial) state can sometimes be framed either as a clash of cultures or as a clash of core material interests. The circumstances of indigenous peoples often make it difficult to distinguish between these two axes of conflict, especially where cultural differences overlap with different interpretations of the history of colonial relationships – of the process by which the settler society gained dominion over indigenous peoples’ traditional lands and of the fundamental legitimacy of state authority with respect to indigenous peoples. Whether deliberative democracy can effectively establish just and legitimate relationships between indigenous and non-indigenous communities depends in part, then, on its capacity to narrow

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the range of disagreement over questions of historical injustice and their implications for future indigenous-settler relationships. In “Deliberative Democracy and the Politics of Reconciliation,” Duncan Ivison explores the potential of deliberative processes to address historical injustice by focusing on the experience over ten years of the Australian Council for Aboriginal Reconciliation. The politics of “reconciliation” were complicated by an array of factors: new court decisions concerning Native title to lands, ongoing social inequality and deprivation among Aboriginal Australians, and the background of the “stolen generations” of Aboriginal children taken from their families as part of a state policy of coercive assimilation. As in other settler societies, indigenous communities were ambivalent about the idea of reconciliation as a goal of political discourse if reconciliation meant putting aside demands for restitution or rectification (see also Alfred 2005). Ivison characterizes disagreement over this question as political rather than (or more than) moral in nature, and he argues that deliberative theory should not regard political disagreement as reducible to moral disagreement. Not surprisingly, perhaps, the Australian experience reinforces the judgment that the deliberative exchange of reasons is seldom, if ever, free of relations of power (Mansbridge 1996; Sanders 1997; Valadez 2001; Young 1990, 1996). Ivison argues that correcting for the power imbalances that are often incorporated (consciously or unconsciously) into the institutional structures of deliberative engagement requires an openness to recursively revising institutional arrangements for political deliberation, including electoral systems. Yet no amount of creative institutional design, he suggests, can generate just results in the absence of a prior commitment to allow questions concerning the core legitimacy of the state in its relation to indigenous peoples onto the deliberative agenda. As the foregoing suggests, some critics of deliberative democracy continue to suspect that it may still harbour surreptitious biases against certain cultural groups – especially indigenous groups – in its presuppositions about the nature of public reason, the institutions and norms of deliberative procedures, and the qualities that individuals must possess to be capable of transformative dialogue. These critics worry that abiding by the strictures of deliberative democracy will tend to favour the modes of argumentation and the interests of dominant groups. In “Resisting Culture: Seyla Benhabib’s Deliberative Approach to the Politics of Recognition in Colonial Contexts,” Glen Coulthard addresses deliberative theorists’ claim that citizens must be able to step back from their identities and understand them as social “constructions.” From the constructivist view of culture, cultural identities are not insular or coherent wholes but crisscrossing narratives, with individuals bringing different elements to bear on different aspects and in different moments of their social relationships. As a sociological critique of cultural

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essentialism, constructivism is sensible enough. The trouble, Coulthard suggests, arises when cultural hybridity becomes a normative standard against which to judge the political self-characterization of marginal groups, particularly indigenous groups. Focusing on the recent work of Benhabib, he argues that the social constructivist critique of the politics of recognition not only overemphasizes the emancipatory potential of anti-essentialist political projects but also fails to confront the oppressive relations of power that often proliferate exclusionary and authoritarian identity formations to begin with. When social constructivist positions are used to assess the legitimacy of indigenous peoples’ claims for cultural recognition and selfdetermination against the colonial state, these positions risk inadvertently sanctioning the very forms of domination and inequality that many constructivist theories attempt to mitigate. Part 4: Citizen Dialogue and Decision Making in a Deliberative Democracy In considering “the real world of deliberative democracy,” the above sections assess contemporary questions of citizen education, constitutionalism, and justice for Aboriginal people through the normative lens of deliberative democratic theory. Deliberative democracy is more than a normative philosophical perspective, however; it also describes a movement that is actively redesigning political processes to incorporate deliberative democratic principles. Examples of overtly deliberative democratic processes abound, most often as forms of citizen participation or consultation attached to more conventionally liberal democratic forms of decision making: examples include the 21st Century Town Halls organized by AmericaSpeaks; consensus conferences in various parts of Europe, which involve lay citizens in political deliberation; and Brazilian institutions of participatory budgeting and collaborative health policy development (Gastil and Levine 2005). These deliberative democratic initiatives provide useful testing grounds for deliberative democratic theory, bringing into relief both strengths and weaknesses of the philosophical program. The various forms of deliberative democratic practice canvassed above are most often consultative: rather than being empowered to make binding political decisions (as with many Brazilian deliberative forums), such exercises usually represent the views of citizens in ways designed to inform debate within conventionally liberal democratic institutions, such as legislatures. In “Public Opinion and Popular Will,” Henry S. Richardson asks whether unempowered dialogue among citizens should be taken to represent the will of the people, given that it invites people to articulate their views without having to come to a binding agreement. Richardson explores these questions through a critique of James Fishkin’s “Deliberative Opinion Poll” model, an unusually influential and rigorously documented practice of deliberative

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17

democratic consultation. Richardson argues that because deliberative opinion polls lack “the discipline of the possible,” they canvass the mere wishes of citizens rather than their genuinely deliberative desires and so introduce hypocrisy and corruption into the democratic process while sidestepping crucial issues of power. Richardson argues that only when deliberative democratic processes are mechanisms of joint agency, empowered to make decisions, can they get around predictable defects of practical reasoning to yield genuinely deliberative outcomes. In “Consulting the Public Thoughtfully: Prospects for Deliberative Democracy,” Fishkin responds to Richardson’s critique, arguing that careful public dialogue such as that modelled by deliberative opinion polls gives citizens the incentive to overcome their “rational ignorance” and develop common understandings of problems. Even without the discipline of collective, empowered decision making, deliberative opinion polls elicit a picture of the popular will that is more adequate than that available through other existing methods and that indeed ought to be normative for those empowered to represent the popular will in representative institutions. Fishkin goes on to situate deliberative opinion polls on a broader terrain of democratic dialogue and consultation, sorting out the different ways in which consultative processes select participants and the extent to which they deliberatively refine opinions; this typology leads him to suggest that deliberative polls – and a grander counterpart, the national “deliberation day” that he has proposed with Bruce Ackerman (Ackerman and Fishkin 2003, 2004) – are best able to balance the key democratic values of political equality and deliberation. In the final chapter of this section and the volume, “The Micropolitics of Deliberation: Beyond Argumentation to Recognition and Justice,” John Forester and David Kahane argue that attention to the nuances and complexities of practices of democratic deliberation reshapes a number of debates within deliberative democratic theory. These nuances and complexities are introduced through two “practice stories,” wherein a student of planning and an experienced mediator and city planner each describe challenges of designing and facilitating deliberative processes. These narratives reveal the tangled relationship between moments of dialogue, deliberation, and negotiation in democratic processes and the interconnections between propositional and performative elements of argumentation. The chapter shows how these lessons from practices of deliberation raise central questions about recognition and the demands of deliberative reciprocity, about the deliberative virtues and their cultivation, and about the significance of the roles of mediator and facilitator for deliberative democratic theory. The four sections of this volume trace connections between deliberative democratic theory and a series of concrete political challenges around educating democratic citizens, relating democratic norms to constitutional

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structures and procedures, grappling with the epistemic gulfs and differences of power typical of indigenous-settler relations, and designing democratic consultations adequate to the exigencies of decision making and the demands of justice. These engagements between theory and practice show the richness and promise of the deliberative democratic paradigm but also how difficult it is to articulate and sustain an ambitious normative paradigm in light of the challenges made visible by an engagement with conflicts and dilemmas on the ground, and to connect the normative languages of political theory with the exigencies of practice. We hope that the dialogues and deliberations provoked by this volume will contribute, in their modest way, to realizing deliberative democracy within and across the complex, multicultural societies in which we live.

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Part 1 Educating Deliberative Citizens

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1 Conceptions of the Good: Challenging the Premises of Deliberative Democracy Micheline Milot

The value pluralism of modern liberal democracies is central to both sociology and political philosophy. Max Weber, whose work inspires both disciplines, used a compelling metaphor drawn from Greek antiquity to describe the fate of modern advanced societies when he spoke of the “polytheism of values” (1959). In the modern world, the polytheism of values describes the relentless secularized struggle between cultural, economic, political, or religious value systems that all seek to establish themselves as hegemonic. No metaphysical norm can rank-order these values because much of their force stems from the convictions of their adherents. In fact, these values confront each other unrelentingly because the beliefs that serve as their foundation are often irreconcilable. As such, according to Weber, society involves constant value struggle, which he likens to the conflict that perpetually divided the gods of the Greek pantheon. These values, as “absolute ideas,” strongly influence the choices of social actors and are manifest in the public sphere when they conflict with the values of individuals or of groups in different political communities. How can we ensure a modicum of social order and political stability in the context of such value conflict? In this chapter, I explore how public schools, in conjunction with the principles of deliberative democracy, can mediate the potential conflict between differing moral and religious beliefs. Although my perspective is primarily sociological, I attempt to consider these principles and their limits alongside key themes drawn from sociology, such as the purpose of modern schools, value pluralism, and the interests of citizens in democratic participation. The Problem of Deliberation about Conceptions of the Good Should schools apply the principles of deliberative democracy when moral and religious viewpoints are presented in the classroom? Can they do so? There is no simple answer to these questions, for three reasons. The first reason is that the two principal theses of deliberative democracy, to do with

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the citizen’s role in deliberation and with the democratic virtues of deliberation, are hotly debated in political philosophy. Bohman (1996), Gutmann and Thompson (1996), and notably Rawls (1996), among others, have each defined, in complex yet different ways, the fundamental principles of deliberative democracy and deliberative citizenship, thus setting up a debate over the proper shape and content of the public sphere, alongside the sorts of deep moral debates outlined above. Overlapping consensus (Rawls 1996) and the requirements of reciprocity (Gutmann and Thompson 1996) are just two contested elements of this set of principles.1 The second reason is sociological. Citizens – and their children – may affirm moral or religious beliefs hostile to liberal democratic values. Some actively engage in contesting values they consider responsible for the moral degeneration of contemporary society (e.g., struggling against abortion or gay rights), whereas others seek to shelter their cultural identity and community lifestyle from the influences of modernity and liberal values. Other citizens see this conservatism as violating norms of public reason, drawing as it does on an orientation toward absolute and particular norms or traditions, without the willingness to deliberate with those who do not share these worldviews. According to the tenets of this position (similar to a militant version of liberalism), “believers” should transform their values to adopt an outlook compatible with democratic regimes. However, the two positions are problematic from the perspective of the tolerance and openness to pluralism that should characterize liberal democracy. The third reason has to do with the educational requirements of schools. There is no philosophical, pedagogical, or political consensus on the objectives that public schools should pursue when it comes to the moral and religious beliefs of children. The two most common educational choices in Western schools are confessional teaching on the one hand, which promotes a particular faith, and complete abstention on the other.2 Both possibilities, if enacted consistently, fail to take the principles of citizenship and deliberation (on whatever interpretation) into consideration. Confessional teaching, by its very nature, gives primacy to the continuation of a particular group’s values or cultural identity. On the other hand, pedagogical silence about moral and religious beliefs sends a mixed message to children: either these beliefs are not sufficiently important in society for the school to be concerned with them, or they are subjects we can grapple with only in the presence of those who share our worldview. Neither of these pedagogies confronts the fundamental problem of pluralism, and each accentuates social division. How can these difficulties be overcome given the thick value pluralism of modern society? I would like to suggest three goals that public schools could pursue. These goals are compatible with the cognitive tasks that characterize

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schools. What’s more, they are inspired by the spirit of deliberative democratic principles. These goals are rooted in an inclusive conception of public reason, defined by principles of tolerance, reciprocity, and civility. Why Treat the Question of Value Pluralism in Public Schools? Moral and religious beliefs are too important in determining social action to be completely eliminated from the educational mission of schools. It is unsustainable to locate fundamental beliefs in the private sphere and deliberation around shared values in the public arena. The private/public distinction as it pertains to religious convictions has long been discredited, in particular by work in the sociology of religion: individuals act, socially identify, and adopt political positions on the basis of their values and beliefs, be they philosophical or religious. Moreover, as noted earlier, Weber persuasively argues that moral differences manifest themselves and take shape precisely when they enter into conflict with the moral positions of other citizens in the public sphere. This fact alone implies that social cohesion has little chance if we simply allow the balance of forces to govern social relations or if we presume that individuals will spontaneously know how to participate peacefully in public life with those who do not share their beliefs. The state, via the public schools, has an interest in preparing youths to live together in a political space with and despite their moral differences. Although parents may be responsible for the education of their children, and though it is clearly desirable that they pass along dispositions that enable a common life, one cannot count on parental goodwill to achieve this pedagogical objective. We can even reasonably doubt whether parents ought to be the principal vehicles of this end. Indeed, it is normal that they (like the religious groups to which they belong) will exercise a sort of centripetal pressure on the young in order to reproduce their own values and beliefs. Modern schools do not share the task of reproducing the specific identity traits of those who use them.3 Since the second half of the twentieth century in particular, modernity and the ideology of progress have increasingly taken hold and strongly influenced Western schools. In fact, the origin of the modern school, its very existence, and its astonishing development are directly tied to the prevalence of the notion of an education for all, an ideology that seeks to prepare each citizen for political participation and collective action. For this reason, modern public schools break with tradition, custom, particular modes of thought, and conceptions of truth. Unburdened by the task of faithfully reproducing the customs of a child’s community, schools are more concerned with instilling a capacity to adapt to the world (principally its technical, economic, and scientific aspects). Schools have opted for a universal conception of knowledge, which differs from folk knowledge that is handed down from father to son and valued locally. Even more

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significantly for our purposes, schools have instituted a radically different relation to truth and thus to authority, tying knowledge to a conception of rationality that rests validity claims on experimentation and rigorous critique and so inevitably contests the very idea of tradition. We find instances of this contest in recurrent controversies in several American states over the teaching of the biological evolution of species, which is deemed incompatible with certain religious doctrines of Creation. In the face of this new aim of public schools, identities inherited by birth and strongly moulded in early family socialization undergo an alteration that can be more or less dramatic depending on the similarity between this inherited identity and the liberal values promoted by the school. Familial and religious values become one among many ways to construct an identity, which becomes, from that point on, pluralist and polymorphic rather than homogeneous and entrusted with a unique heritage. There are myriad examples of this fragmentation of tradition provoked by the school. This is why liberal values can be perceived as a threat to the identity and culture of different communities, for example in regard to structures of authority and to gender roles. Let us return to the fundamental question: How can education apply the principles of deliberative democracy without imposing an unjust burden on children (and their parents) whose moral and religious beliefs oppose the values promoted by liberal democracy?4 I will treat this question with one limiting presupposition in mind: it seems to me that schools cannot be expected to transform the beliefs of individuals hostile to liberal thinking in order to make them conform to the principles of liberal democracy. Despite the function of the school described above, the liberal state cannot morally require such a transformation if one of its principal characteristics is to be open to differing worldviews, even those contrary to its own principles. How far can schools go in applying liberal democratic principles while taking the educational role of value pluralism into account? The Principles of Citizenship and Deliberation The civil participation of individuals and the deliberative virtues admit of degrees, and it is not plausible to expect that all citizens will deliberate and participate in society with the same degree of investment and competence, much less that they will all adhere to liberal democratic principles. I will not directly discuss the different theses at loggerheads with the two main principles of deliberative democracy; however, as my sociological concerns are expressed in terms of citizenship and deliberation, I will, in this section, briefly outline two key propositions related to these concepts. In the following section, I will present three objectives that situate citizenship and deliberation as both plausible and desirable reference points when addressing the reality of value pluralism in public schools.

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The Requirements of Citizenship The liberal democratic state must both “tolerate” those who do not subscribe to the values that underlie this political regime (insofar as they do not threaten its survival) and ensure that the state’s existence is generally supported by citizens.5 •

•

•

•

•

The active role of the citizen can be valued for different reasons. It can, for example, facilitate social cohesion (solidarity around collective projects beyond our particular interests) and revitalize civil institutions to generalize political participation to a larger scale. However we interpret civil participation as a normative ideal, it is not an acceptable or even a desirable lifestyle for all citizens. Certain citizens maintain that citizen action is an illusion and that their participation has absolutely no effect on the course of political decisions; others do not recognize worthy political projects other than the religious ideology to which they subscribe. Democracy, with its “natural” affinity to pluralism, cannot morally oblige all citizens to have a strong, homogeneous, and common identification with the collective political project. In the constitutional state, even those religious groups most resistant to liberal values have an interest in participating, in their own manner, in democratic institutions. The most obvious example is recourse to law to protect their way of life; this recourse has stimulated progress in jurisprudence in matters of freedom of religion and expression. Democracy cannot survive without a sufficient number of citizens meeting its functional demands (participation, responsibility, respect for law, etc.), but withdrawal from active citizenship by some constituencies does not threaten liberal democracy.6

Democratic Deliberation Deliberation, despite its intrinsic limits (it is utopian, and so sociologically invalid, to expect deliberation to allow citizens to overcome their moral differences), still seems to be one of the best routes to peaceful social interaction in a context of value pluralism. Otherwise, we must rely on force (and the not always moderate tyranny of the majority). •

Deliberative democracy, whether it is construed as a means to procedurally obtain a minimum social consensus or interpreted in terms of direct participation by citizens in the decisions that concern society, is not valued by all citizens (particularly those whose absolute beliefs are, by nature, non-negotiable). • Collective deliberation cannot make moral differences disappear without recourse to a moral theory integrating a particular conception of the

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• • •

•

good, thus erasing the very essence of pluralism. Moreover, certain religious groups cannot subscribe to this mode of social interaction because the criticism and “decentring” that are part and parcel of deliberation risk undermining the cultural and identity foundations of the group. Value conflict thus remains an ineliminable dimension of democratic societies. The deliberative process can indirectly accentuate feelings of division between individuals who are conscious of their moral differences. Deliberation, in the context of moral pluralism, is a question of individual “aptitude.” That is, it cannot be normatively demanded. Deliberation, despite its limits, remains the least coercive and the most apt way of supporting enlightened interaction and openness to pluralism between individuals with different beliefs. In a constitutional state, even those religious groups most resistant to liberal values can accept a recourse to deliberation, even if it is only for the purposes of instituting and sustaining a system of rights that allows them to live according to the principles and values to which they adhere.

Despite these various qualifications, I believe that the principles of deliberative democracy are helpful in treating the problem of value pluralism in schools; these principles remain operative even though it is sociologically unlikely that civil participation and deliberation will be affirmed by all and morally unacceptable that liberal states should oblige all citizens to live according to these principles. Lest I be misunderstood, the aim should be not to marginalize citizens who do not subscribe to the principles of the liberal democratic state but to examine the possibility of an even partial inclusion in public reason of conceptions hostile to liberalism. Moreover, I maintain that certain normative constraints inherent in the rule of law are extra-deliberative (at least after the moment of their enactment). For example, it would be absurd, not to mention improbable, that citizens who claim their right to the democratic vote would decide to abolish the democratic state. Even individuals or religious groups resistant to liberal values need the vote in order to enjoy a differentiated moral status within a pluralistic society (Carens 1996). Some Desirable Educational Goals Schools are not agoras. They are institutions geared to the initiation of individuals into community life. Thus, they cannot be entirely divorced from the dominant norms of the surrounding society. The socializing role of schools should not be defined in terms of normative principles; I do not think that the school should form youth according to a particular normative

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ideal. Rather, schools should seek to provide youth with the disposition and capacity to allow them, once adults, to make choices about civil participation and the best ways to realize their lives in society. I thus propose three intertwined objectives drawn from the model of liberal democracy (as construed above), and I will examine the degree to which they allow youth who hold diverse values and beliefs to nonetheless live together. Tolerance Since Locke, the notion of toleration has engendered abundant debate, and one can easily discuss its aporias. Without entering into these debates, we can outline “weak” and “strong” senses of toleration. In the weak sense, it involves abstractly supporting the idea that others can live freely without sharing our values and without belonging to our particular cultural or religious group. The weak sense of tolerance permits social pacification (in a static sense) but does not necessarily inspire respect for others or the capacity to debate opposing viewpoints in the political arena. We can brush elbows with others without truly engaging with them because the state imposes this tolerance through judicial constraints that hinder individuals from limiting the liberty of others who have different values or lifestyles. In its strong sense, tolerance goes beyond a simple acknowledgment of the idea that others enjoy by law the same freedom that one is accorded through political governance. I understand strong toleration epistemically, primarily as a psychological and cognitive capacity rather than a social one. Because we consider our own beliefs valid for ourselves, we can recognize that people who adhere to different beliefs consider them just as valid, and therefore it is not our place to judge their conceptions of the good life. One acquires this type of mindset gradually, particularly when it comes to religious beliefs based on absolute principles and not on a social consensus open to revision and redefinition. Youth are unable to develop the capacity to tolerate differences in an epistemic sense unless they are exposed to viewpoints different from those of their family or religious group. This goal must be guided by two complementary objectives: first, knowledge of diverse life options should be imparted not to nurture a shared culture but to awaken respect for others. This respect requires that the school’s curriculum not give disproportionate weight and salience to a particular value system or induce moral discord between the child and her family regarding their religious or cultural tradition. The legitimacy of teaching religion at school is often justified by its necessary contribution to understanding artistic, historical, and political dimensions of Western culture. This goal is important, but it can be met by integrating religion into programs such as history, literature, and geography; it does not yet justify an education in value pluralism specifically. Indeed,

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mere understanding of the fact of religious diversity may not predispose one to tolerance; history has demonstrated in abundance that humans have gone to the point of killing each other because of differences in religious belief. Furthermore, one can worry that a presentation of religion in the classroom would be limited to a stiff, even folkloric or idealized, description. In such cases, one risks distancing oneself from the real needs and interests of children in addition to presenting a caricatured vision of religion. There is even the risk of aggravating division when bringing the mosaic of different moral and religious beliefs to light. This is why the knowledge of different religious and moral conceptions, although necessary, must in fact serve another objective: the respect of others as equal in dignity. Respect for others in their differences goes further than merely the descriptive understanding of doctrines. It is not only about knowing that others do not necessarily share our beliefs and values but also about developing a respectful attitude that permits others to feel that their identities are recognized and accepted. Epistemic tolerance, however, does not necessarily require approval of others’ beliefs and practices. When one calls for youth to be tolerant of others, it is not a demand to renounce personal beliefs. The recognition that others have the right to the same respect depends not on believing that their values are just and good but on fundamentally accepting that they have the right to the same respect as oneself, even if their beliefs are foreign, undemocratic, or do not conform to those of the majority. A better education on religious and moral preferences would help each child acquire a positive identity without fearing the judgment of others, whatever her identification with a particular religious group. Sociological studies show that the more a group perceives itself as socially marginalized for its beliefs or their public expression, the more often it deploys offensive or defensive strategies, to the detriment of civil participation. An individual who is misrecognized by society will conclude that it is preferable to preserve the religious tenets of her identity, even if it means excessively emphasizing her creed. This attitude applies equally to those who identify with the majority social group: learning to recognize others can forestall a condescending “majoritarian reaction.” The goal of deepening knowledge and respect is necessarily a responsibility of public schools, because families and religious associations can ensure a positive identification only from an internal standpoint (self-identification rather than in relation to others’ diversity). Of course, this aim cannot entail a limitless conception of tolerance, since it is subject to certain principles of law that have a transcendent (but not metaphysical) and extra-deliberative status: the rights of others (notably to security of the person) and to public order. Nevertheless, these constraints also benefit those who are resistant to liberal principles since they protect minorities from the pressure to conform to the values of the majority.

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Reciprocity Reciprocity is a social competence that is more difficult to develop than mere respect for others, but it is rooted in the same logic. Gutmann and Thompson (1996) present interesting and complex arguments concerning the normative constraints of reciprocity; I propose, at least for the purposes of education, a conception less stringent than theirs. A strict conception excludes the public participation and deliberation of those whose beliefs are at odds with the dominant, accepted norms in the public sphere, unless they deny a portion of their beliefs in favour of ones that could be accepted by others in the agora. Although in theory it may be desirable that individuals leave aside their partisan interests before entering into the public debate, schools cannot demand this of pupils. I would like to propose a more permissive conception of reciprocity: without exercising undue moral pressure on children who are, for example, members of a fundamentalist group, schools can aim to develop a disposition that recognizes or accords to others what one wishes to have recognized or accorded to oneself and that seeks not to offend others on issues with respect to which one would not want to be offended (the same principle goes for the atheist child toward a fundamentalist child). This model is not just procedural; it leads to a substantive ethic of social relations. Civility, which I describe in the third point, is its concrete expression. What does this mean, precisely, for educational policy? Children must be helped to distinguish between the legitimacy of the conception of good that fuels their actions and their attitudes toward others who do not share this worldview. Children should be capable of evaluating what they can expect from others who do not share their values and beliefs. History unfortunately offers us a disappointing portrait of the capacity of individuals – be they believers or atheists – to act according to such a conception of reciprocity with respect to religion. No legal restriction can require thinking of one’s relation with others in terms of reciprocity; the law can prohibit harming another, but it cannot oblige us to recognize the legitimacy of another’s identity and lifestyle. The predetermined moral norms of a religious group often involve restrictions that hinder the aptitude for reciprocity and the capacity for public deliberation by members. Radical liberals object to this request because they believe that religious doctrine or simply religious belief hinders independent thinking and judgment, which are indispensable parts of responsible citizenship. This objection is still current, particularly in France, where one observes in public debates an opposition to manifestations of religion in the political sphere that is traceable to an Enlightenment contrast between the democratic will to guarantee the freedom of religion and the need to strip away beliefs judged radically contradictory to reason and autonomy. Nevertheless, even this objection rests on the ideals of liberal democracy.

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Doctrines need not be liberal for those who adhere to them to be able to bring arguments to the table in public debates (e.g., the sacred character of life) or to promote certain forms of participation in civil society (e.g., volunteering or helping those with less in the name of Christian charity). What matters is how claims are brought to the public sphere. In this respect, Weithman (2002) distinguishes the contents of non-democratic preferences and preferences from whether these are promoted in an undemocratic fashion. Believers should not feel excluded from contributing to public deliberation.7 The development of this ability through adequate teaching must enable citizens to participate in public debate and not hold back simply because their religious beliefs are judged illegitimate by others. Since reciprocity is an aptitude that cannot be subjected to normative and legal restrictions, it requires an educational process. Education can aim to instill in children a distinction between the contents of religious doctrines, even illiberal and non-democratic ones, and the ways in which they are expressed in the public sphere. The nature of moral and religious beliefs, even when conceived of as absolute, does not necessarily hinder democratic participation and deliberation.8 At the same time, if a belief is absolute, the way it is expressed in the public sphere ought to comply with requirements of respect for those who do not share it. Is this obligation of reciprocity still too limiting for believers who see their values as non-negotiable? I think the answer is no. These believers cannot deny the principles that enable them to draw attention to their own arguments in the public sphere (e.g., the respect for each individual regardless of the moral position that she adopts). So they must behave ethically toward other citizens according to the same principles. Even if children do not participate in public debate, the predispositions required for such debate are acquired by a slow process of education and socialization. Moreover, these dispositions are called on from the youngest age, for example in the schoolyard; isn’t this one of the first settings, other than family, where the acceptance of difference and respect must be put in place and where the smallest divergence from the dominant majority easily leads to exclusion? Civility The disposition of character that makes possible both respect of others and the capacity to conceive our social relations in terms of reciprocity is manifested in the public sphere in an attitude that I will call civic-mindedness. This refers to the attitude of the citizen in public life. It is not a normative ideal but a mode of living together that enables an adequate realization of respect and reciprocity. They suppose, in the end, two abilities that can seem problematic for some fundamentalist religious groups: the capacity of reflexivity and moderation in the public expression of one’s beliefs.

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In a literal, dictionary sense, reflexivity relates to the capacity to turn thought back on itself.9 It supposes a capacity for distancing oneself from one’s religious beliefs. How should this sense of civility be defined in regard to religious beliefs? What criteria can guide us? Religious expression is always accompanied by certain limits, notably considerations of social peace and public good, but I am interested here not in external constraint but in an awareness that the absolute character of affirmations of faith can hinder respect for others and lead to inequitable treatment of those who do not share the same beliefs. A Capacity for Reflexive Distance The capacity to distance oneself from one’s moral and religious beliefs does not imply that they are denied any more than it implies a relativist attitude, nor does it demand that a child make a value judgment on the content of her family’s beliefs or her own. Reflexivity should not be confused with a radical critique of tradition or an implicit will to uproot identity; severing one’s sense of belonging to one’s culture is hardly desirable. If reflexivity is constituted by a certain critical distancing from the values and beliefs to which one adheres, then its goal is not to uproot these values but to instill a mindset that accords with the intellectual mission of the public school, which cannot renounce its educational mission without denying the foundations of its own legitimacy. Mandatory public school, as I previously described, does not aim to reproduce particular identities. The learning that goes on in schools cannot occur according to the model of self-interpretation generally found in the family or in religious groups. It is normal for families, churches, temples, or mosques to put children in contact with the beliefs of the traditions to which they belong. In school, then, it is not unreasonable to expect that a pupil will develop the capacity to distance himself from his beliefs simply by becoming conscious that this affirmation makes sense for him and those in his religious group, whereas other children who do not adhere can legitimately believe in something else. Without the development of this capacity to distance oneself, it is impossible for youth (as for adults) to understand how different absolute affirmations can be just as “fair” and “good” for others. The capacity to distance oneself certainly can incite feelings of moral and religious relativity, but “relativity” should not be confused with “relativism.” If relativism has the tendency to level moral preferences by asserting that they are equivalent, the sense of relativity (once again identified by Weber) leads the individual to recognize that beliefs are valid and valuable from a particular viewpoint, notably those that are dominant in her own community. When treating faith affirmations in class, relativity can be conveyed by specifying that statements such as “Mohammed is the Prophet,” “Jesus is

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reborn,” or “Yahweh has chosen the Hebrew people” are considered true and legitimate but within the value systems that support them. The absence of a distinction between “true belief” and the contents of a tradition as seen “from the outside” can provoke intellectual confusion in children between the existence of different fundamental religious beliefs and the world interpretations that arise from within faith communities. The learning process is gradual and without a doubt much easier for children than for adults. Once again, the aim is to entrust schools with a mission different from yet complementary to that of the family and religious organizations. Moreover, distance with respect to affirmations of faith is not generally offensive for children and parents since its nature is not strictly critical but primarily cognitive. Moderation in the Public Expression of One’s Identity The second “civic” attitude is moderation in the social affirmation of one’s identity and beliefs. The idea of moderation in affirming one’s identity was developed by Spinner (1994) and rearticulated by Pagé (1996). It is correlative with the logic of integration in a pluralist context and with recognition of the fundamental equality of all citizens. Moderation means not that one must repress or conceal one’s religious identity but that one can model it in a way that does not hinder relations of mutual respect for and sharing with others. The threshold of tolerance in the “weak” sense, described above, is surpassed. What does moderation mean? That strong and exclusive affirmations can take place within the family sphere or one’s religious group, but to the extent that they can be the source of discrimination and inequitable treatment of others, believers must internalize a sort of “code for public life” to establish reciprocal relations of respectful collaboration. This attitude concerns not only those belonging to a minority group whose religious beliefs define a large part of their social identity and strongly underlie moral choices; it also applies to the majority group that, even in a largely secularized society, often develops expectations of fellow citizens exhibiting a different identity, expectations requiring that minorities conform to general, implicit social norms. Once again, moderation does not develop spontaneously in adults. The school’s curriculum must be inscribed with this lesson, much more than family or religious organizations, to awaken mutual respect in youth so that each can live according to her beliefs, at the same time recognizing that she must impose limits on the expression of these beliefs when relating to others. To reach this point, the previously described criteria must be implemented: when the child is assured that her own identity is legitimately recognized in the school, and when learning gives her access to the tools that permit her to develop her thinking, moderation is perceived not as a denial of self but as a way of relating to others who do not adhere to the same beliefs.

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I would like to emphasize that the capacity for reflexivity and identity moderation is perhaps more difficult to accept for fundamentalist religious groups. However, in the sense that these values are not normative constraints in education and are supported by the goals of tolerance and reciprocity, they can seem less menacing for the inherited identity. They must be situated, above all, as conditions that facilitate the social participation of individuals, whatever the strength and nature of their beliefs. Conclusion The objectives presented above seek to define principles that promote the ability to live peacefully in situations of value pluralism. The goal is not to obtain an “overlapping consensus” or to define “reasonable” values worthy of expression in public deliberation. Instead, I have outlined the character dispositions that, developed in the individual, would allow for a modus vivendi that enables democratic relations between individuals of different fundamental beliefs rather than a consensus between irreconcilable values. This modus vivendi is a way of living based on compromise or interaction that makes it possible for two parties in disagreement to behave peacefully. Not all groups fundamentally resistant to liberal values, political participation, and critical deliberation can be expected to see these goals as beneficial for their children. It still seems to be plausible, in light of the research I have undertaken (Milot and Ouellet 2003) comparing members of different fundamentalist groups, that some of them can incorporate norms of public reason without having to “translate” their beliefs into terms acceptable to the majority. There will be different degrees of acceptance of these goals, but this is not a reason to abandon them. I am aware, however, that this chapter does not resolve a precondition of the program that it puts forward: cultivating in teachers the capacities for tolerance, reciprocity, and civility that we have been discussing. I will address this problem in future work.









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Notes 1 I elaborate below on these two principles. Weinstock (2002) puts forth several arguments challenging the plausibility of the two principles. See also Bickford (1996) and Weinstock (1999). 2 There have been experimental attempts at a multifaith pedagogy (e.g., in Newfoundland) or history of religions (in some American states), but these have been only local initiatives. 3 It is quite a different question whether religious schools should be submitted to the same demands of civic formation as public schools, although I doubt it. My focus in this chapter remains on public schooling. 4 Note that this question, often asked about fundamentalist religious groups, applies as well to militant atheists who judge religious beliefs to be a source of alienation and who base their evaluation of the behaviour of others on moral considerations that are equally controversial. Many atheist parents oppose their children’s subjection to any schooling that explores religious doctrines. 5 On the concept of the “significant other” of social action with respect to institutions and the notion of “generality,” sometimes translated in sociology as “average,” see Weber (1971).

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6 For example, a wilful coup d’état by a religious or ideological group represents a threat to the survival of liberal democracy, but this is not so with a group living apart from society or with young women who wear the Muslim veil – even if the groups in these latter cases adhere to illiberal conceptions. 7 From this perspective, it is appropriate, in a democratic society, for fundamentalist religious groups to publicly oppose laws that clash with their religious beliefs – such as same-sex marriage – with the associative and judicial means available to all citizens. 8 Canadian jurisprudence attests to the distinction between social behaviour and personal beliefs: each person can adhere to the beliefs of her choice, but her freedom to act in accordance with her beliefs, whether in the private or the public domain, is more restricted. This interpretation is compatible with the fact that paragraphs 2(a) and (b) of the Canadian Charter of Rights and Freedoms (which concern freedom of conscience, religion, and expression) coexist with article 15, which protects against discrimination toward the devout and non-devout alike. The equilibrium between these rights must respect the viewpoints of both devout and non-devout. See Chamberlain v. Surrey School District No. 36, [2002] S.C.C. 86. 9 Reflexivity is equally identified as one of the major characteristics in advanced modernity (see Giddens 1994).



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2 Religious Belief, Religious Schooling, and the Demands of Reciprocity Harry Brighouse

Religious believers appear to bear the lion’s share of the burdens imposed by deliberative citizenship. Secularists can embrace the idea that all their claims concerning political power should be justified according to public reasons because they do not have compelling non-public, yet non-selfinterested, reasons pressing on them. But religious believers experience themselves as being bound by reasons that, though not grounded in their own self-interest, are not readily susceptible to public scrutiny. They may believe that executing criminals is wrong even when doing so is effective in deterring crime, cost effective, non-racially biased, and there are completely reliable processes for identifying perpetrators, because they regard life as sacred. But if life is sacred – so sacred that execution is impermissible even under those conditions – it is not for some publicly accessible reason but just because God stipulates that it is. They may have a similar stance toward abortion or the use of pre-emptive war to pursue otherwise legitimate national interests. Religious believers also appear to bear a significant burden when a deliberative democracy goes about the process of fostering the traits needed for good deliberative citizenship. One central mechanism for fostering the traits of good citizenship is schooling. Whereas fostering the traits that deliberative democrats tend to prize in children from secular households requires an education entirely consistent with the values and commitments of their parents, religious parents may look askance at the demands of such an education. If it is successful, then their children are more likely to develop habits and beliefs, and become committed to values, that create a fissure with their parents. Religious parents, according to some critics of deliberative democracy, are more likely than secular parents to find deliberative values at odds with their own values and are more likely to object to, and suffer from, the efforts of the government to foster deliberation in their children. This criticism is especially telling when we consider the United States and the kind of schooling that religious parents are free to choose for their

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children. Over the past thirty years, non-Roman Catholic religious schooling has seen a startling increase. In the past fifteen years, home-schooling has grown with similar rapidity, a great deal (but by no means all) of it among parents who identify as evangelical or fundamentalist Protestants.1 In most states, private schooling is subject to very light regulation.2 So children in these environments are highly likely to have very restricted encounters with children from other kinds of backgrounds and are unlikely to have their received views directly challenged and tested. One response to this observation is to say that the burden is much less serious than I have suggested because I have tacitly assumed that the demands of deliberative citizenship are much greater than they truly are. Perhaps, instead, mere law-abidingness and a willingness to tolerate others are sufficient virtues for the good citizen. But I think that deliberative democrats do, and should, have a richer and more demanding conception of good citizenship than that, as I shall explain in the first section of this chapter. In light of the more demanding conception, around which conflicts really do arise, it is natural to ask about the place of private religious schooling in a deliberative democracy. To what extent should the state accede to the demands of religious parents that their children be spared the kind of education that fosters deliberative character? For the sake of completeness, think of the three alternative stances a state might have regarding religious schools. It could adopt any of the following policies. •

Prohibit: forbid religious schools and require all children to attend public, secular schools. • Privatize: maintain public secular schools but allow parents to send their children to private religious schools at their own expense. • Fund: financially support religious schools, making them either a de jure or de facto part of the public school system. Of course, there are variations within each policy, in particular in the kinds of regulation to which public schools and, in the cases of privatize and fund, religious schools will be subject. Even in prohibit, it would be possible to accommodate religious parents’ preferences somewhat by, for example, deferring to their preference that their children be exempt from certain programs and classes, as is now common practice in public schools with respect to sex education and in some religious private schools with respect to religious education. In this chapter, I ask which of the above policies deliberative democrats should favour. Although I suspect that prohibit is usually the wrong policy, I think there is a case to be made for both of the others. However, I think that, in the circumstances of most modern democracies, a policy of “fund

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within an appropriate regulatory framework” is probably the best. I make most of the argument for this claim in the third section. In the first section, I defend the idea that good democratic citizens should embrace the demanding norm of reciprocity. But I also argue that this norm is less demanding on religious believers than some of its critics have supposed it to be. In the second section, I tentatively argue that liberals who advocate this norm should adopt a strategic goal of minimizing the degree of adherence to unreasonable comprehensive moral views and should adapt their proposals for education policy to that end. And in the third section, I tentatively make the case for fund with appropriate regulations as the best stance toward religious schools. The Demands of Legitimate Citizenship William Galston (2002) argues that deliberative democracy is too demanding on the motivations of citizens. He quotes the norm of reciprocity in public political debate proposed by Amy Gutmann and Dennis Thompson (1996, 57): “Any claim fails to respect reciprocity if it imposes a requirement on other citizens to adopt one’s sectarian way of life as a condition of gaining access to the moral understanding that is essential to judging the validity of one’s moral claims.” Galston then comments as follows: It may well make sense to urge all citizens to do their best to translate their commitments into terms that can be understood by citizens who do not share them. But the norm of reciprocity should not be interpreted to screen out the kinds of core beliefs that give meaning and purpose to many lives. This caveat is especially important in the United States, where levels of religious belief and observance are far higher than in any other industrialized democracy. It is difficult to believe that any liberal democracy can sustain conscientious support if it tells millions of its citizens that they cannot rightly say what they believe as part of democratic public dialogue. (116)

Galston makes a distinction between offensive and defensive claims in public debate – the former assert that other people should do as I say, the latter that I need not do as they say – and asserts (but as far as I can see does not really argue) that, for defensive claims in particular, it is important to have an inclusive understanding of public reason. It is, in other words, important to recognize the propriety of advancing reasons that are not accessible (on a natural understanding of accessible) to those citizens who are being asked to refrain from advancing coercive action by the state. At first glance, the norm of reciprocity does seem extremely demanding, and Galston’s demand concerning its interpretation seems to be a plea, really, to reject it, at least for “defensive” claims. I suggest, however, that the norm is not as demanding as it might seem, at least on reasonable citizens, and

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that when we apply it to policies concerning the schooling and education of minors, Galston’s request that we refrain from applying it in the case of defensive demands does not get us very far. The reason is that members of religious or cultural minorities typically are not asking other citizens to allow them to do what they want to themselves but are asking others to allow them to do things to other people, their children. Nevertheless, Galston is right to worry about how demanding the norm is on citizens who adhere to unreasonable comprehensive moral views. For them, indeed, it is extremely demanding, and pointing out to them that their children are independent and separate persons is not likely to have the desired consequences, especially because liberal democracies (for reasons that I think are good; see Brighouse and Swift 2006) allow parents considerable de facto power over their children’s lives. However, parents typically (and rightly) regard themselves as having extensive rights over the kind of upbringing their children will have and the content of their education. In practice, their rights concerning upbringing are rarely contested; the policy arena in which these issues are fought out is education. Although it will be familiar to many readers, I want to mention a particular case that focuses our attention on the question of the extent to which the state may try to inculcate in children the traits of deliberative citizenship and the extent to which it should defer to parents. It is the famous case of Mozert v. Hawkins (Bates 1993). In this case, a group of fundamentalist parents in Tennessee sued the local public school district to demand the exemption of their grade school children not from schools but from a civic education program using readers that, the parents claimed, conflicted with their religious beliefs. The offending passages included a comment from Anne Frank’s Diary of a Young Girl that perhaps unorthodox belief in God is better than no belief at all and a picture showing a boy making toast for a girl, which contradicted the traditional sex roles the parents claimed were demanded by the Bible. The district refused to exempt the children from the program, and as a result the parents sued, claiming that their first amendment rights were abridged. The parents withdrew their children from school while the legal battle was fought, until, finally, the case was found against the parents and for the district. However, the story does not end there. I come back to it in the third section. The civic education curriculum in Mozert had the rather modest aim of acquainting children with a variety of perspectives on how to live in order to promote a moderate tolerance. The norm of reciprocity is, as we have seen, more ambitious, and promoting it directly might take a more demanding and, to the Mozert parents, even more troubling curricular reform. Are there any reasons for adopting it? The norm of reciprocity has its roots in John Rawls’s principle of legitimacy. The fact of reasonable pluralism gives

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rise to the question of the circumstances in which it is legitimate for the government to coerce its citizens. Rawls’s theory of legitimacy provides the following answer: “Political power is legitimate only when it is exercised in accordance with a constitution the essentials of which all citizens, as reasonable and rational, can endorse in the light of their common human reason” (2001a, 41; emphasis added). Notice that Rawls does not require that the essentials actually be endorsed in light of our common human reason, only that all citizens as reasonable and rational can endorse the essentials. This is substantially weaker than an “actual endorsement” constraint, at least if it is the case that our common human reason underdetermines the propriety of the constitutional essentials. However, if we note the fact of reasonable pluralism and the indeterminacy of our common human reason even with respect to constitutional essentials and take them, in combination with the obligation to respect the status of others as reasoning beings, as generating the principle of legitimacy, then the potential endorsement interpretation of the principle of legitimacy looks a little too weak. A state that is satisfied with its legitimacy despite widespread and reasonable non-consent to its constitutional essentials, simply because reasonable people could endorse those essentials, seems less legitimate than one that strives to win the assent of reasonable dissenters. So the state should pursue political strategies that, other things being equal, make it more rather than less likely that more people will come to actually endorse the constitutional essentials in light of their common human reason. (I will return to this point.) What does Rawls’s principle of legitimacy require of citizens? In particular, how does it support Gutmann and Thompson’s (1996) norm of reciprocity? At one point, Rawls says that a stable constitutional regime’s “basic institutions should encourage the cooperative virtues of political life: the virtues of reasonableness and a sense of fairness, and a spirit of compromise and willingness to meet others halfway. These virtues underwrite the willingness if not the desire to cooperate with others on terms that all can publicly accept as fair on a footing of equality and mutual respect” (2001a, 116). A stable constitutional regime should also encourage the duty of civility, which “requires us in due course to make our case for the legislation and public policies we support in terms of public reasons, or the political values covered by the political conception of justice (or one of a suitable family of such)” (90). Advancing policies that can be justified only by appeal to reasons that get their force from our comprehensive conceptions of the good treats our fellow citizens not as cooperators but as objects of our will. To avoid this, we must appeal to reasons that are, in the relevant sense, public. Let us suppose that such a stricture does mean, for example, that one cannot argue for policies (even defensive policies) on grounds of personal

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revelation or by appealing to sacred texts. How demanding is it on people who believe that they are privy to personal revelations or fortunate enough to know which sacred texts are authoritative? In fact, it might not be as demanding as Galston supposes. Consider something else Rawls says when discussing public reason. Citizens are not prohibited from introducing and discussing reasonable comprehensive doctrines in public debate: “People are in general free to do this. It has the advantage of citizens informing one another where they come from, so to speak, and on what basis they support that public political conception of justice” (2001a, 90). So, whereas in the process of advancing legislation citizens are required to refrain from relying on reasons they find compelling, but that they know other reasonable people cannot find compelling, in the process of engaging in the public political culture they are freed from any such constraint. They can make use of such reasons in public speeches, newspaper articles, television debates, arguments with friends, et cetera. Indeed, Rawls (like, I presume, other deliberative democrats) sees laying out one’s own comprehensive view in public as having a great deal of value. The norm of reciprocity applies not to “democratic public dialogue,” as Galston interprets it, but only to a rather small (though obviously very important) fraction of this dialogue – that directed at passing or preventing legislation. To see the other reason that the restriction is less demanding than Galston suggests, we have to look at how Rawls understands what makes a comprehensive conception of the good reasonable. He deliberately refrains from providing a thorough and exhaustive definition of reasonableness, but he does say this: “A reasonable doctrine must recognize the burdens of judgment and so, among other political values, that of liberty of conscience” (2001a, 191). What does it take to recognize the burdens of judgment? “The sources of reasonable disagreement ... among reasonable persons are the many obstacles to the correct (and conscientious) exercise of our powers of reason and judgment in the ordinary course of political life” (35). The burdens of judgment include that the empirical facts concerning any particular case are hard to assess; that people can reasonably assign different weights to agreed-on considerations; that our concepts are vague enough that they are indeterminate in hard cases; and that our differing individual personal experiences shape how we assess evidence and weigh moral and political values (Rawls 2001a, 35-36). Just to be clear, the adherent of a reasonable comprehensive moral view need not reject moral commitments she knows others cannot share in light of their common human reason. She can believe not only that scripture is morally authoritative for her but also that it is authoritative for all, even those who do not recognize its authority and even though their inability to recognize its authority is the consequence of the burdens of judgment and

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not some character flaw. They can believe all these things: what makes them reasonable is that they recognize the burdens of judgment and are, because of this recognition, unwilling to foist their views onto others by force of law (i.e., they acknowledge the value of liberty of conscience). Now, it is possible for someone to be unwilling to foist her views on others by force of law but to use her views as justification of some law. “I am not trying to change their view, just their behaviour.” But acknowledging the burdens of judgment, one develops habits of mind and argumentative dispositions that incline one to appeal to public reasons (more exclusively construed) rather than private reasons when thinking about and arguing in favour of public policy options. It is simply not so demanding for people who have acknowledged the burdens of judgment to refrain from using private reasons to justify public actions as it is for people who have not yet acknowledged the burdens of judgment. Adherents of what Rawls thinks of as reasonable comprehensive conceptions do not experience the norm of reciprocity as a great demand. By contrast, adherents of unreasonable conceptions may indeed experience them as very demanding. But what is the difference between reasonable and unreasonable conceptions? In the US context, it is easy to think that there are vast differences. On the one hand, we have the archetypal fundamentalist Christian who believes that scripture impugns homosexuality, abortion, sexual licence, et cetera. He seeks to use the law to enforce these norms and coalesces with his fellow fundamentalists not only on these issues but also in favouring vouchers for religious schools, opposing welfare and universal health care, and supporting low taxes and widespread gun ownership. On the other hand, we have the stereotype of the suburban liberal who rejects all the same positions, does not believe in God, supports a strict understanding of the separation of church and state, et cetera. The unreasonable and the reasonable comprehensive views look as different as chalk and cheese. But Rawls is right to focus on just one difference between reasonable and unreasonable comprehensive conceptions: acceptance of the burdens of judgment. Two people can believe the same things about what is morally required of and permissible for them, and they can agree that the same is required of and permissible for others, while disagreeing on just one thing: the extent to which they should use those beliefs to justify coercive political action. The explanation of this one difference lies in their different stances toward the burdens of judgment. For the reasonable fundamentalist, the norm of reciprocity is no more demanding than it is for the agnostic suburbanite. So there is no need for the norm of reciprocity to undermine the loyalty of citizens even on an exclusive interpretation of it and even in a society such as the United States in which levels of religious belief and observance are higher than in any other industrialized democracy.

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Of course, it could be that in fact religious believers and observers in the United States are, in good numbers, not reasonable in Rawls’s sense. If so, then the exclusivist interpretation of the norm of reciprocity will strain their attachment to the polity. This is an empirical question, but I suspect there is some truth to the suggestion. Three things seem to me to be true of the United States and not of other industrial democracies. There is a high level of religious belief; among religious believers, there is a high level of fundamentalism; and fundamentalists tend to converge politically. This third fact is very important. Something like fundamentalist Christianity exists in many churches in the United Kingdom and in most other European democracies. But it is not a political force, not only because it lacks a critical mass, but also because it is spread across the political spectrum. You are, admittedly, unlikely to find a fundamentalist Christian in Britain campaigning for a lowering of the age of consent for homosexuals. However, you are as likely to find one supporting as opposing tax hikes for public education and the national health service and as likely to find one supporting as opposing a firefighters’ or miners’ strike or a strategy of privatizing public services. Fundamentalism (or at least fundamentalist Christianity) is not necessarily unreasonable. I conjecture that its apparent unreasonableness in its contemporary US version is due to the success political entrepreneurs have had in forging a political coalition that has channelled fundamentalists in a single political direction, despite the fact that their core moral beliefs do not imply that political direction. This success makes it harder for them to see, as a matter of course, that even people who share their comprehensive conception of the good reasonably disagree about political matters and thus makes it harder for them to acknowledge, and internalize the moral/political significance of, the burdens of judgment as they pertain to political matters. Promoting Reasonableness So the requirements of deliberative citizenship are much less demanding on reasonable people than Galston seems to assume, and religious belief, even of the variety that most concerns him, is compatible with reasonableness. The costs of compliance for unreasonable people, however, are very high. A liberal polity cannot sustain the conscientious support of the unreasonable if it tells them they cannot advance some of what they believe as justifications for the coercive use of state force. How should someone committed to Rawls’s principle of legitimacy respond to this problem? There are two obvious responses. The first is just to dismiss the problem. The conscientious support of the unreasonable does nothing to legitimate the state. Furthermore, their dissent does not reflect badly on its legitimacy. So there is no real matter of principle here: the state should work around the unreasonable and defer to them as much as is necessary

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for it to remain free to perform its functions, but it should not worry about them. The second response is more appealing to me: the state should assume that unreasonableness is remedial and should strive to win over the unreasonable to the values of reasonableness. How should the state pursue the project of, if you like, diminishing unreasonableness? A great deal of recent philosophical literature has focused on the public regulation of schooling as the key mechanism for producing reasonable citizens (see Callan 1997; Gutmann 1987; Macedo 2002). The public regulation of schooling is, not coincidentally, liable to be a battleground on which even otherwise reasonable people appeal to their sectarian conceptions of the good. How would we have to regulate schooling to produce reasonable citizens? Rawls includes a useful, if sometimes puzzling, answer to this question in his explanation of why justice as fairness is a political, not a comprehensive, version of liberalism: Various religious sects oppose the culture of the modern world and wish to lead their common life apart from its foreign influences. A problem now arises about their children’s education and the requirements the state can impose ... [Political liberalism] will ask that children’s education include such things as knowledge of their constitutional and civic rights, so that, for example, they know that liberty of conscience exists in their society and that apostasy is not a legal crime, all this to ensure that their continued religious membership when they come of age is not based simply on ignorance of their basic rights or fear of punishment for offenses that are only considered offenses within their religious sect. Their education should also prepare them to be self-supporting; it should also encourage the political virtues so that they want to honor the fair terms of social cooperation in their relations with the rest of society. Here it may be objected that requiring children to understand the political conception in these ways is in effect, though not in intention, to educate them to a comprehensive liberal conception. Doing the one may lead to the other, if only because once we know the one we may of our own accord go on to the other ... But the only way this objection can be answered is to set out the great differences in both scope and generality between political and comprehensive liberalism as I have specified them. The unavoidable consequences of reasonable requirements for children’s education may have to be accepted, often with regret ... It is fundamental that, beyond the requirements already described, justice as fairness does not seek to cultivate the distinctive virtues and values of the liberalisms of autonomy [Kant] and individualism [Mill] or indeed of any other comprehensive doctrine. (2001a, 156-57)

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I want to make an aside before discussing how this passage answers our question. At the foundation of justice as fairness is the idea of free and equal citizens possessed of the capacities for a sense of justice and a conception of the good and a higher-order interest in developing and exercising those capacities. The capacity for a conception of the good includes a capacity “rationally to revise” one’s conception of the good, which sounds much like an ideal of autonomy. This fact makes Rawls’s attempt to distinguish his theory from comprehensive theories questionable, and it casts doubt on his implicit lesson that children can be exempted from the kind of educational practice that we expect to contribute to their becoming autonomous persons. However, Rawls is clear in this passage that children may not be exempted from the educational practices that can be expected to contribute to the development of their effective sense of justice and in particular to “encourage the political virtues,” which importantly include the duty of civility. The state should not exempt children from such educational practices, even in deference to parental interests and even if doing so will not jeopardize the (conventionally understood) stability of the democratic polity. Galston believes that some religious parents will object to these kinds of practices and recommends a policy of deference. Rawls recognizes the possibility of objections and implicitly rejects deference. The reason, I think, is internal to justice as fairness. Justice as fairness ideally needs everyone to be reasonable, not just enough people to maintain a (conventionally) stable state. Any who do not acquire the habits and dispositions of reasonableness are locked out of the process of public justification. They become people toward whom the state cannot legitimately act and whose participation in public decision making will often be oppressive of others. They are locked out of the public reason-giving community, not through their own fault or that of the rest of society but because their parents have locked them out. Galston treats the objections religious parents make to the kind of civic education recommended by Rawls’s principle of legitimacy and Gutmann and Thompson’s norm of reciprocity as “defensive” claims: he treats them as claims that “I need not do as you say,” and, as we have seen, he thinks that citizens can be exempt from the requirement to give public (or accessible) justifications of those kinds of claim. But as I indicated in the introduction, this does not help in this case. Religious parents are not demanding permission to do as they judge best in these matters. They are demanding that their children not have to do as other people say. Galston’s proposed inclusive interpretation of the norm of reciprocity when justifying defensive claims does not help here because, properly understood, the demand for exemption from Rawls’s civic educational curriculum is not a defensive claim. So even Galston’s inclusive interpretation of the norm of reciprocity for defensive claims does not justify deference to religious parents in these matters.

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Promoting Reasonableness through Education Policy I have claimed that the requirements of deliberative citizenship are not too demanding and that the proper response of a liberal state to manifest unreasonableness is to eliminate it. Now I want to turn to the substantive question of the best way to do so. In particular, is it appropriate for the state to share authority over schooling with, or delegate it to, religious organizations? Should the state allow, and perhaps even fund, religious schools? I look at this question here solely with regard to the aim of producing deliberative citizens. Other considerations should, in my view, properly influence policy regarding schooling. Design of the education system should take account of children’s prospective interests in autonomy and in having a reasonably pleasant time in school, parents’ legitimate claims (whatever they are), the principle of equal opportunity, and other considerations of justice. I neglect these issues here in order to provide a sharper focus on the issue of promoting deliberative citizenship. How should we approach this problem? Here is a standard, and I think misguided, approach to addressing the question. First, we identify a certain secular goal – in this case, adequately promoting the trait of reasonableness – that, we think, the school should have to meet in order to enjoy the privilege of state funding. Meeting this goal is considered either a necessary or, sometimes, a sufficient qualification for funding. Then we argue about whether or not religious schools do, or could, meet those goals. Why is this approach wrong? First, it is wrong because we have at least to compare the performance (or predicted performance) of religious schools with that of non-religious schools. Far too much public commentary criticizes religious schools on various grounds by comparing their actual (or predictable) performance with that of some ideal common school rather than with either that of actual public schools or that of the public schools we really could expect to have if we abolished religious schools. There is a question here about how much attention we want to address to questions in ideal theory and how much we want to be constrained by non-ideal circumstances. I think that many of the most interesting questions about education and schooling arise only in non-ideal circumstances, and I assume some non-ideality (though I am not sure how non-ideally I am thinking). Second, when asking whether some type of school should be part of some policy, it is never right to look at the effectiveness of that type of school. Instead, we must look at the net contribution that we can expect it to make to the effectiveness of the system of which it is a part. So, for example, we might find that religious schools are very good at promoting deliberative character in the children who attend them but to the detriment of the ability of other schools to do the same and to the net detriment of the system of schooling as a whole.

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Consider an analogous point about the empirical literature on school effectiveness and improvement.3 Policy makers like to look at the effectiveness debates because they understandably want to make schools more effective (where effectiveness is understood, crudely, as improving academic outcomes, as measured by various crude tests). But one school frequently gains in effectiveness at the expense of other schools. Suppose that a mediocre school appoints a dynamic and charismatic principal. Given the way in which real labour markets actually work, it is highly unlikely that the principal has been drawn away from the manufacturing, financial services, or even higher education sector.4 Much more likely is that she has effectively been drawn away from another school. Suppose that teaching quality affects school quality and that, having heard about the innovative practices and brilliant leadership in this school, teachers in other schools apply in greater numbers for new vacancies, so that the principal can draw on an improved talent pool in making appointments. Again, it is unlikely that, at least in the short to medium term, talent will be drawn away from the non-teaching sector. This school’s gain is probably another school’s loss. The lesson here is that what makes one school better can simply make other schools worse, so from success of some school or type of school within a given environment we cannot conclude that the school or kind of school will succeed in a changed environment. It could be true, for example, that religious schools themselves excellently facilitate deliberative character but that doing so makes it very difficult, or even impossible, for non-religious schools to do so. In that case, their performance, considered as a sector, would not count in favour of funding or even permitting them. How might religious schools make it more difficult for non-religious schools to promote deliberative character? It might be vital for the development of deliberative character in children from non-religious backgrounds that they are in frequent and regular contact with children from religious backgrounds who, in a system allowing religious schooling, are siphoned away from them into religious schools. By contrast, most religious schools might contain a sufficient diversity of outlooks for deliberation to be well facilitated, and, of course, children from religious backgrounds might routinely encounter non-religious and anti-religious perspectives on life outside their home and school lives (especially as they reach adolescence and gain more independence). Third, we should not assume that schools can compensate for the background public culture in the development of character, nor should we assume that the structure of schooling policy will have no effect (or have only the effects that we want it to have) on the background political culture. What matters is not whether a kind of school makes the children in it reasonable, or whether the overall system of schools promotes reasonableness, but the extent to which it promotes reasonableness in children, by whatever agency.

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Policies in compulsory schooling designed to promote reasonableness within schools may nevertheless inhibit the development of reasonableness by prompting behaviour from the interested parties or backlashes within the public culture that make it less hospitable to reasonableness. Consider a hypothetical world in which the broadcasting and print media are infused with a Reithian ethic of serving the educational and deliberative interests of the public and in which children therefore encounter and engage with numerous models of public reasonableness in their leisure time. In such a world, we would try to make sure that the school system did not cancel out the lessons learned in civil society, but we would be free to emphasize other educational priorities. Taking these objections to the standard approach into account, we can describe a different, and better, approach to the problem. We ask what place religious schools would have in an overall system of school regulation, provision, and funding that would, in the circumstances, best secure the goal of producing reasonable citizens, taking into account (at least) three considerations. First, schools are not the only institutions influencing whether these children become reasonable citizens, and the system of school provision regulation and funding might itself have an impact on how well other institutions (the family, civil society) contribute to that end. Second, religious schools, whether they receive funding or not, will influence how well secured those goals are, and decisions about funding will affect the character of the unfunded sector, which will in turn affect both the funded schools and the non-school institutions. Third, schools affect one another, and funding decisions about one school will affect the character of others.5 If we adopt this framework for thinking about whether to allow, and whether to provide state support for, religious schooling, then we can see what is wrong with one response to the problem. One common response runs along the following lines. Public schooling is (partly) about producing reasonable citizens who can engage with each other respectfully across comprehensive conceptions of the good. This aim is best served by providing all children with a secular education in which they learn about each other’s religious views but in schools that are not run by religious organizations and do not incorporate a spiritual dimension. If some parents insist on a religious education for their children, they can withdraw from public education and send their children to religious schools at their own expense. Sometimes this response is supplemented by an exaggerated exhibition of respect for religious freedom and expression of the fear that if religious schools are funded by the state, they would also become subject to state regulation, with consequent compromising of religious liberty.6 It is also sometimes supplemented with the assumption that if the government merely tolerates and does not fund religious schools, citizens are not implicated in what

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happens to the children in those schools. Anthony Grayling is quoted as saying that, “given the great harm that religions do ... in the way of conflict, war, persecution and oppression and preventing the growth of science and freedom of thought, I object profoundly to my taxes being used to this end” (quoted in Dean 2001, 89). What is so wrong with this response (which is the dominant liberal view, I think, in American politics today)? First, the distinction between public and private education is entirely artificial. The state has an obligation to ensure that children get the education (whatever that is) to which they have a right, so all children (and all schools) fall within the remit of “public education.” The state is the guarantor of last resort that children get the educational provision to which they are entitled. If it judges that allowing and regulating private schools serves that end efficiently, then it bears responsibility for that judgment and, by virtue of its role as guarantor of last resort, it bears responsibility for what happens in those schools. The voter cannot escape his implication in the decisions the state makes or the consequences of those decisions. At the fundamental level, in other words, all schooling is ultimately a public responsibility and unavoidably so. As long as the government allows religious schools, all citizens are implicated in what happens within them and what happens elsewhere as a result of tolerating them. Second, suppose (implausibly, but more on that later) that religious schools cannot participate in producing the desired outcome (deliberative citizens). Why should the institutions that can uniquely produce the right outcome exclude the children of religious parents? If religious schools are peculiarly ill suited to producing deliberative citizens, then that is surely because there is something in the content of those religious views that inhibits deliberativeness, in which case the children who are withdrawn into them are presumably the very children in need of an effective citizenship education! And third, the response ignores the effects of its own policy on aspects of civil society other than schools. Here are three possible, and worrying, outcomes of such a policy. 1

2

3

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Religious entrepreneurs can make use of the inevitable controversies over public schooling to exacerbate divisions and harden barriers between the ways of life. Reasonable religious parents who want education with a spiritual dimension have to choose between the crazies and us. The market for moderate religious schooling is undermined. Religious organizations come to have a stake in the continued division and do not collaborate with secular society in the common project of producing citizens (e.g., UK Muslims who get funding are moderates,

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strengthened by the funding within their communities, whose political outlook becomes more reasonable). All three of these possible outcomes affect civil society in ways that make it less conducive to the development of reasonable citizens, which in turn makes it more urgent and simultaneously more difficult for schools to succeed in that task. Now think about the market conditions religious organizations with unreasonable outlooks that run schools face when the state adopts the response described above. Presumably, many parents, reasonable and unreasonable, want for their children schooling with a spiritual component. They can get it only by going outside the public school system. Given that local markets can support only a limited number of schools, and depending on the population’s distribution between reasonable and unreasonable outlooks, many reasonable parents may face a stark choice – between purely secular schooling on the one hand and unreasonable religious schooling on the other. Some – perhaps many – will choose the latter. To the extent that they do so will compound the problem of unreasonableness: not only do the unreasonable reproduce their unreasonableness in their children, but they also have the ability to compromise the children of some of the reasonable. So policy makers should take into account the anticipated effects of proposed policies on those other institutions that shape citizens. If religious schooling is to be permitted, especially if it is to be lightly regulated, then it will have a profound effect on how parents react to the regime within the public schools, with consequent effects on the formation of reasonable citizens. Under a regime that permits lightly regulated private religious schools, it might well be better to pursue funding for religious schools on the condition that they meet certain regulations. Consider the dilemma of UK governments concerning funding for Islamic schools. The UK government has a long-standing practice of collaborating with religious organizations – primarily, but not exclusively, the Roman Catholic Church and the Church of England – in the provision of schooling. Most larger cities have at least one Catholic and at least one Anglican statefunded secondary school, and most have several religious elementary schools; indeed, in many older cities, religious elementary schools are more common than secular schools. When these arrangements were established (1944), very few Muslims lived in Britain; now many do, and they are concentrated in several cities. Muslims, naturally enough, want state-funded Muslim schools, and these demands began to be pressed in the 1980s, just as support for state funding of religious schools was beginning to wane and after the growth of the women’s movement had made many aspects of schooling that Muslims find appealing seem objectionable. In particular, many Muslims

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want single-sex schools for their daughters and hold conservative views about sex education and the place of women in society generally. Should the UK government fund Muslim schools? Let us address the question using the considerations I have recommended. First, the state’s choice is not between having Islamic children attend secular state schools and having them attend Muslim schools. As long as Muslim schools have permission to operate in the private sector, for many parents the choice is between having their children attend private Muslim schools and having them attend state-supported Muslim schools. The government can, will, and should use the power to fund schools in a way that supports those Islamic schools most likely to promote engagement with the mainstream culture (because those are the schools that are most likely to best promote democratic character in their children). The enhanced status of the leaders of these schools affects the balance of power within British Islam in favour of integration and toleration. Against this background, the case for funding, on the ground of the desirability of promoting religious character, is strong. Funding the schools helps deprive sectarian entrepreneurs of imagery and anecdotes suggesting that the state has contempt for Islam. It strengthens the market position of a kind of schooling that reflects Islamic values but does so without separating it from the common project of educating all children, and it does these things without consigning children to a more sectarian schooling than they would otherwise experience. The facts could be different. It could be that the better achievement of relevant goals would be through non-funding. If the Muslim community in Britain is highly integrationist, and has the resources to break down the barriers presented by segregation and outright racism, it might be that Muslim schools would in fact house the children of a residue of sectarians and hence undermine efforts to promote deliberative character, at least in these children. I suspect that the facts on the ground are not like this, that there is indeed a great variety of attitudes toward integration within the Muslim community, and that community by itself has very limited ability to overcome the barriers to integration presented by the society in which it is nested. But it is important to emphasize that the path I propose involves conjectural judgments both about the facts on the ground and about the likely dynamic effects of the funding/regulating regime; I am, in this chapter, simply making assumptions to illustrate the way in which the final judgment would be made. What about the situation in the contemporary United States? It seems to me, though I cannot give anything like conclusive evidence for it, that one of the explanations of the unreasonableness of US fundamentalist Christians is the success that religious and political entrepreneurs have had in representing the mainstream culture as deeply hostile to religious and spiritual perspectives. The absence of a spiritual dimension to any public schooling

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has been crucial to this success. Fundamentalist parents see public schools as replicating much of the materialist outlook that prevails in the public, and especially in the commercial, culture, and some of this outlook at least manifestly evinces hostility to many of the values religious believers might be expected to endorse. So it is easy to present public schools as actively hostile to religiosity. Among fundamentalists, stories abound of children sent home from school for reading the Bible in free reading time or legal challenges to voluntary prayer groups. There is often a grain of truth in these stories, easily exaggerated and manipulated by entrepreneurs with an agenda, in a world in which the truth about such matters is not readily available. Even when they do not have a kernel of truth, these stories are believable to people who see children smoking and littering with impunity outside the school doors and are aware of the impersonality and disciplinary regimes in many public high schools. Suppose that the state collaborated with religious foundations to provide schools regulated so that they would educate for deliberative and reasonable citizenship and so that, while they could admit students of their own faith in sufficient numbers to maintain a critical mass, beyond that they could not discriminate against students from families of other faiths or no faith. This approach might help, in the long term, both to undercut the market for schooling of a kind less conducive to reasonableness and to undermine the ability of religious entrepreneurs to portray the government and public schooling as hostile to religion and religious values. It might also lead to greater integration even within schools of children from different faith and no-faith backgrounds, to the benefit of the development of reasonableness among the children, it being easier to develop the habits and dispositions of reasonableness in public discourse if one has direct experience of those toward whom one has to be reasonable! The suggestion here is that if we rule out the option of prohibiting religious schools, the option of funding might, at least with the right regulation, be more conducive to the educational goals of deliberative democrats than the option of privatizing. I promised to complete the Mozert story I began earlier. I do so now because I think that it is a fine illustration of how things can go wrong under a regime of privatizing religious schools. The court, as I said, found for the school district: it found that the district was entitled to refuse to exempt the children from the civic education curriculum. So the case might look like a victory for the promotion of reasonableness through public schools. But it looks that way only if we refrain from completing the story. After the court found against the parents, the parents permanently removed their children from the public schools and sent them to Christian fundamentalist schools that they had established. When Holt published the next edition of the readers, it excised all the passages to which the Mozert parents had objected. Then,

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perhaps most damaging of all, the story began to circulate, in garbled versions, among fundamentalists.7 If peer effects matter, then a consequence of the resolution of the issue was that both the Mozert children and their non-religious peers now attended schools in which they were less likely to develop the trait of public reasonableness; if the curricular materials matter, then both sets of children (and many others besides) would subsequently use readers that were less likely to be effective in promoting toleration and reasonableness. The way in which the story was disseminated likely increased rather than diminished the sense of alienation that fundamentalists feel from secular society, with predictable consequences for their own inclination to be reasonable in Rawls’s sense. I say this not as a criticism of the court decision (which may, for all I know, have been a proper interpretation of the law) or of the officials involved (who may, for all I know, have been making what seemed to them the right strategic judgment in light of the evidence available to them). But I am pointing out that deliberative democrats have little to cheer in the all-thingsconsidered outcome of the case. Insofar as promoting deliberative character is a legitimate function of the education system, the Mozert outcome impeded rather than served that function. Concluding Comments Galston is wrong in taking the norm of reciprocity to be too demanding, even for the extremely religious. The state that seeks to realize Rawls’s theory of legitimacy will try to promote reasonableness. My conjecture in the third section, though, is that the strategy to achieve this may involve the state in a good deal of deference to religious parents on educational matters. But the deference it offers should be engaging deference – it should try to collaborate with religious parents in the provision and regulation of schooling, because such a strategy holds out greater promise both of taming the unreasonableness of some religious parents and of fostering it in the children of nonreligious parents.







Notes 1 All figures on home-schooling are rough estimates, but there is a consensus that growth has been rapid since the mid-1980s. Kurt Bauman (2002) of the US Census Bureau offers estimates of 356,000 in 1994 and 791,000 in 1999. Estimates of 1 million or more are now common. 2 See Dwyer (2002) and Peshkin (1988) for accounts of how unregulated some schools and schooling experiences are. 3 This is a central point in Thrupp (2001); see Gewirtz (2001). 4 In UK schools, principals are paid much better than successful academics, and movement between the sectors is relatively easy, but I don’t know of many cases of principals being drawn from academia. 5 I apply this framework with respect to a broader set of educational goals in Brighouse (2005a, 2005b).

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6 Sandra Feldman (1999), opposing vouchers for religious schools, says that, “for religious schools, public scrutiny and accountability raise issues of religious freedom; the deep infusion of religion throughout their curriculum and lessons is essential to them, as is their freedom to require children to attend religious services. They don’t want state interference in any of that. Yet, accountability to the broader public must go along with public funding.” 7 I have only anecdotal evidence of this: I have several times encountered inaccurate versions of the story, first in an argument with a fundamentalist relative some ten years after the fact.

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3 Religious Education and Democratic Character Paul Weithman

My faith in the constitution is whole, it is complete, it is total. – US Congresswoman Barbara Jordan during the    Watergate hearings (Holmes 2000, 95)

The reproduction of democracy requires that succeeding generations of citizens acquire the skills and habits they need to govern themselves. According to deliberative democracy, citizens should govern themselves on the basis of public deliberation, a process of political decision making characterized by the exchange and evaluation of reasons for political outcomes. The reproduction of a deliberative democracy therefore requires that succeeding generations of citizens acquire the qualities they need to engage in this process.1 Clearly, if deliberative democracy is to prove a viable theory of democratic politics, its proponents will have to say something about how citizens acquire these qualities of character. Most deliberative democrats would agree that democratic character formation cannot be left to chance or to the felicitous movement of an invisible hand. Some of the most prominent of them maintain that social reproduction must be a “conscious” undertaking by the people as a whole, effected through democratically controlled primary and secondary education.2 Indeed, it is said, preparing future citizens for participation in a deliberative democracy – by cultivating a “democratic character” – ought to be the primary aim of pre-collegiate formal education.3 What role can religious schools have in democratic education? American philosophers of education have long had reservations about religious schools. The grounds of those reservations, however, are not immediately clear. I believe they are unclear in large part because theorists of democratic education have not spelled out the requirements of a democratic character

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with any real precision. We can ask what sorts of education help instill a democratic character, and we can see whether the reservations these theorists have about religious schools are well founded, only if we first know what a democratic character is. Since deliberative democrats think citizens should govern themselves on the basis of public deliberation, let us say that a deliberatively democratic character consists of the traits citizens need if they are to govern themselves in this way. In the first section of this chapter, I ask what reasons there are for including one or another trait in a deliberatively democratic character. In the second section, I specify some of the traits of such a character. The second section draws on the rational reconstruction of a version of deliberative democracy that I call “strong deliberativism.” At the heart of strong deliberativism is a disposition to comply with requirements of what is sometimes called “public reason” – the disposition to rely on and the readiness to offer others reasons that are “public” or “accessible.” The need for citizens to develop those dispositions imposes clear demands on democratic education. In the third section, I show how these demands are connected to the reservations that some deliberative democrats have about religious schools. By drawing this connection, I show that the idea of public reason – central to so much recent work on religion and democracy – is also central to discussions on whether religious schools can contribute to democratic education. As we will see in the third section, some of the reservations deliberative democrats have about religious schools depend on the claim that these schools encourage attitudes toward one’s own moral views that are incompatible with meeting the requirements of public reason. In the fourth section, I suggest that some of these attitudes can in fact be elements of a deliberatively democratic character. This suggestion depends on the claim, which I also defend in that section, that the concepts of publicity and accessibility of reasons do not do any independent philosophical work in specifying the traits of a deliberatively democratic character. This claim has two important upshots. One is that the most plausible versions of deliberative democracy are not those that give an essential role to the notion of public reasons. The other is that the importance of the notions of publicity and accessibility, which seemed to be so central to the goals of democratic education, is really heuristic. Deliberatively Democratic Character A deliberatively democratic character consists of the skills and habits citizens need if they are to govern themselves on the basis of public deliberation. But such a character does not consist of the skills and habits each and every person must have if the society of which she is a part is to govern itself on the basis of public deliberation at all. Rather, it consists of the skills and

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habits that make someone a good citizen of a society that governs itself on the basis of public deliberation that is well conducted. Because the claim that one or another trait is part of a democratic character is a claim about good citizenship and well-conducted deliberation, its validation depends on arguments drawn from moral and political philosophy. Some of these arguments concern the question of which traits a citizen must have if she is to entertain the deliberative contributions of others with the attitude appropriate to deliberation among equals. Others concern the question of how someone must be able to view her own deepest moral and political convictions if she is to deliberate with someone who disagrees with her. These are questions about the psychology of citizenship, but they are psychological questions with a normative twist since they concern the habits, skills, and dispositions that it is good for citizens to have and the features of deliberation that make it well conducted. There is no reason to think, before we attempt to answer these questions, that there is any one set of qualities that constitutes a deliberatively democratic character. It could be that possession of that character is disjunctive. Perhaps to possess it is to possess one of a number of different sets of traits. It could even be that these sets are distinguished by the inclusion of traits that are logically or psychologically incompatible. It could be, for example, that a good citizen of a deliberative democracy is either an uncompromising critic of every last injustice or a conciliatory pragmatist who works for marginal improvements. Indeed, it could be that well-conducted deliberation depends on the active participation of citizens who complement one another by bringing different skills and habits to public debate. Possession of a deliberatively democratic character could be disjunctive without the disjuncts being disjoint. Perhaps some traits are common to all instances of a deliberatively democratic character. But once we admit the possibilities that the list of these traits is not exhaustive and that “deliberatively democratic character” is to be understood disjunctively, the question of whether religious schools can effectively foster such a character becomes a good deal more complicated than it seemed when we thought that such a character consisted of just a few important traits. It could be that religious schools, or some religious schools, are particularly effective at fostering one kind of deliberatively democratic character – at fostering one set of traits – but not very effective at fostering another. And it could be that the effectiveness of religious schools at fostering that kind of character is overlooked because the most salient traits of that kind of character are so common, or are so pronounced in some quarters, that they are simply taken for granted. Or it could be that, under current political conditions, the kind of character religious schools are good at fostering is thought to show itself most clearly in contributions to public debates that some deem uncivil and that the

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incivility overshadows the less obvious benefits a society enjoys when some of its citizens have such a character. I will return to these possibilities in the fourth section. My most basic point for the moment is simply this: though much writing in the philosophy of democratic education seems to assume otherwise, it is clear that an account of a deliberatively democratic character – and hence an account of the goals of a democratic education – presupposes a good deal of philosophical work on citizenship and deliberation. Only after that work has been done can we answer the question of whether religious schools are effective at instilling a deliberatively democratic character. Although I do not do that work here, I have tried to do some of it elsewhere. I will build on that work in what follows. Strong Deliberativism and Three Requirements Deliberative democrats sometimes claim that someone can be a good participant in public deliberations only if he has or is willing and able to adopt certain critical attitudes toward, or attitudes of detachment from, the opinions, values, and preferences he supports in those deliberations. Those attitudes are said to be elements of a deliberatively democratic character. An education that effectively fosters such a character will be an education that effectively fosters those attitudes toward one’s own political views. We can best evaluate claims about the attitudes a good citizen has toward her views, I believe, by asking how she holds those views – by which I mean asking about how she is disposed to defend and to change them. Elsewhere I have drawn on some of the conditions that deliberative democrats put on public deliberation to spell out an answer to this question.4 Among those conditions are what I call “the legitimacy condition,” “the free and equal condition,” and “the common interest condition.” According to the legitimacy condition, the fact that a political outcome results from well-conducted public deliberation contributes to its legitimacy. The free and equal condition says that citizens should take part in public deliberation as free and equal. The common interest condition says that public deliberation should be oriented toward the common interest. What I call “strong deliberativism” moves from these conditions to a set of demands on well-conducted deliberation. These demands are expressed by demands on the sorts of reasons to which good citizens should be responsive when they take part in public deliberation. It is because strong deliberativism imposes these demands that it has implications for the traits of a deliberatively democratic character. I have argued that, according to strong deliberativism, a deliberatively democratic character includes the disposition to comply with the following three requirements. For reasons I have given elsewhere, the requirements are disjunctively specified.5

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Requirement 1 (1) Citizens should support only political outcomes for which they are willing to offer reasons that they think are public in due course, that they would think on critical reflection are sufficient, and that they would think on critical reflection are regarded as sufficient by those to whom they are willing to offer them. or (1’) Citizens should support only political outcomes for which they are willing to offer reasons that they think are public in due course, that are in fact public, that they would think on critical reflection are sufficient, and that they would think on critical reflection are regarded as sufficient by those to whom they are willing to offer them.

Requirement 2 (2) Citizens should reject or modify their own view about what is to be done when they are confronted with public reasons for an alternative that they would regard on critical reflection as better than the public reasons they would identify in due course for the outcome they favour. or (2’) Citizens should reject or modify their own view about what is to be done when they are confronted with reasons they think are public for an alternative that they would regard on critical reflection as better than the reasons they think are public that they would identify in due course for the outcome they favour.

Requirement 3 (3) Citizens should disagree respectfully with those participants in public deliberation who comply with (1) or (1’) and (2) or (2’), who accept the demands of the free and equal and the common interest conditions, and whose reasons for alternative outcomes they do not find persuasive. or (3’) Citizens should work respectfully for a mutually acceptable compromise with those participants in public deliberation who comply with (1) or (1’) and (2) or (2’), who accept the requirements of the free and equal and the common interest conditions, and whose reasons for alternative outcomes to those they previously endorsed they do not find persuasive.

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According to the strong deliberative position, those who participate well in public deliberation have the settled dispositions to comply with (1) or (1’), (2) or (2’), and (3) or (3’). They are therefore disposed to offer public reasons for their political positions even if they also have religious reasons for them. They are disposed to change their views if others have what they think are stronger public reasons for a view they initially opposed, however strong they think their religious reasons are. They are therefore disposed to comply with one view of the demands of public reason. In putting these dispositions at the heart of a deliberatively democratic character, strong deliberativists follow Rawls, who says that a central element of deliberative democracy is citizens’ readiness to abide by the idea of public reason (2001b, 139). How does identifying these dispositions help us identify the attitudes citizens should have toward their own political views? Note first that strong deliberativism does not require some of the attitudes that good citizenship in a liberal democracy is sometimes said to require. The disposition to comply with (2) and (2’), for example, neither expresses nor entails a requirement of skepticism toward one’s views. Nor does the disposition to comply with either one seem to entail a sense of critical detachment from one’s political views, an ironic detachment from them, or a conscious openness to the possibility that those views may be wrong. These attitudes may facilitate compliance with (2) and (2’). If they do, then democratic educators will be tempted to encourage them. But whether they do is an empirical question. What compliance with (2) and (2’) does demand is responsiveness to the public reasons others offer for alternative positions. Clearly, it can be true of someone that he would change his views in response to the arguments of others even if he does not hold his own views skeptically or ironically. Educators can try to encourage compliance with (2) and (2’) without trying to encourage skepticism or irony. Of course, skepticism should not be confused with fallibilism. A deliberatively democratic character may include the latter without including the former. It may be that possession of a deliberatively democratic character requires fallibilism about one’s political views. In that case, we might take (2) and (2’) as attempts to spell out what fallibilism requires.6 Deliberative democrats often imply that citizens who have the right attitudes toward their own political views support those views “autonomously” and that an education aimed at fostering those attitudes is education for autonomy.7 I believe that strong deliberativists would say that someone who is disposed to comply with (1) or (1’), (2) or (2’), and (3) or (3’) is appropriately described as supporting her views autonomously. Why? There are many interpretations of autonomy that enjoy currency in the philosophical literature (Christman and Anderson 2005). Some of them give a central place to the agent’s critical reflection on her own views. The answer

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to why someone who is disposed to comply with (1) or (1’), (2) or (2’), and (3) or (3’) supports her views autonomously might therefore seem to lie in the “critical reflection” clauses in (1) and (1’), (2) and (2’). For someone who complies with the requirements of strong deliberativism publicly supports only political outcomes for which she can offer reasons that she would think on critical reflection are sufficient; she alters her views in response to public reasons offered by others that she would think on critical reflection are better than her public reasons. Her support for political views therefore tracks the results she would reach after critical reflection on the quality of her reasons for her views and on the quality of the reasons others offer her for their views. Supporting views only if one would support them given such critical reflection might be thought to be sufficient for supporting one’s views autonomously. The person who complies with (1) or (1’) and (2) or (2’) might be thought to support her views autonomously because she is thought to satisfy this condition. But the condition that does the work in this line of thought cannot be a sufficient condition for autonomy. For one thing, much more would need to be said than theorists of democratic education typically say about just what critical reflection is before we could conclude anything about the condition. For another, it is hard to see how someone whose support for her political views just happens to track the conclusions she would reach after critical reflection can be described as supporting her views autonomously without regard to why or how her support actually tracks those results. Yet this is what someone who thinks the condition is sufficient for autonomy is committed to. Someone who supports her views autonomously has a morally significant kind of freedom. We can begin to see why someone who is disposed to comply with (1) or (1’), (2) or (2’), and (3) or (3’) supports her views autonomously by seeing in what way such a person is free. Because someone who is disposed to comply with (1) or (1’) supports only the political outcomes for which she is willing to offer public reasons in due course that she would regard on critical reflection as sufficient, she supports only the outcomes she would support if she arrived at her political views on the basis of the public reasons she has or comes to have. Furthermore, if she is disposed to comply with (2) or (2’), then she is ready to change her views if she is presented with what she would take to be stronger public reasons for an alternative position, regardless of the strength of her non-public reasons. So such a person supports only those outcomes she would support if she did not allow the force of what strong deliberativists would call “nonpublic reasons” to determine her views, and she revises her views as if she were not determined by the force of such reasons. Someone whose political views track the political views she would reach if she did not allow her views to be determined by non-public reasons is

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not free just on that account. But now consider someone who is disposed to comply with (1) or (1’), (2) or (2’), and (3) or (3’) because she thinks that public reasons have an authoritative role in public debate. This person does not simply support and revise her views as if she were not determined by the force of her non-public reasons. She also recognizes that she should not allow the force of these reasons to determine her views because she acknowledges the authority of public reasons and acts on that acknowledgment. In this description of the agent, what she does not allow, and why she does not allow it, do significant work. I believe strong deliberativists think that a person who does not allow the force of her non-public reasons to determine her political views thereby participates in public deliberation freely. I believe they think that the kind of freedom she exercises can be called “autonomy.” Let me grant that someone who does not allow her support and revision of her political views to be determined by the force of her non-public reasons thereby exercises a kind of freedom. We can see why the strong deliberativist might think that this kind of freedom is autonomy by resorting to an image on which some strong deliberativists rely. Some strong deliberativists think that a person who acknowledges the authority of public reasons acknowledges the authority of a certain “point of view” that she can take of her political opinions – the point of view that Stephen Macedo calls a “shared political point of view” (1995, 468ff., 488).8 This is the point of view that someone adopts by asking herself which outcomes she would or could support consistent with the demands of her public identity as a citizen. To acknowledge the authority of this point of view is to acknowledge the authority of public reasons because they are the reasons that would move someone in this point of view. They are reasons that are authoritative for citizens considered as such.9 On one interpretation of autonomy, people hold their views autonomously when they hold views that are determined by their “true” selves rather than by external influences. Extending this notion of autonomy, strong deliberativists may think that someone is politically autonomous when her support and revision of her political views is determined by her true public self – by her public identity. Strong deliberativists may also think that someone who acknowledges the authority of the “shared political point of view,” and who supports and revises her political views accordingly, is thereby being true or faithful to her public identity. She is, they may think, allowing her public identity rather than her non-public reasons to determine her political views. If so, and if they accept the description of political autonomy given above, then they will conclude that such a person is politically autonomous. According to the strong deliberativist, then, a deliberatively democratic character includes the settled disposition to comply with (1) or (1’), (2) or

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(2’), and (3) or (3’). An effective democratic education effectively encourages students to develop those dispositions. So an education for strong deliberativism will teach students to survey their political positions and the reasons they have for them from what I have referred to as a “political” viewpoint. Strong deliberativists would describe such an education as an education for autonomy. Such an education may encourage students to reflect not only on the reasons they have for their positions but also on what it is to be a citizen who holds and defends political views appropriately in public deliberation. An education that effectively encourages autonomous dispositions or attitudes toward one’s own political views may thereby encourage a certain way of conceiving oneself in one’s public or political role. Hence, an education that encourages students to hold their political views autonomously may encourage them to think of themselves as publicly autonomous as well. Encouraging students to think of themselves as publicly autonomous is one of the ways in which strong deliberativists think that a deliberative democracy reproduces itself. Just as citizens who learn to think of themselves as rights holders learn to demand that their rights be respected, so too those who learn to think of themselves as autonomous in the relevant sense learn to demand that they be offered the right sorts of reasons in public debate. It is only when succeeding generations of citizens learn to demand such reasons that well-conducted deliberation can continue from one generation to the next. So the widespread development of such a self-conception is not a foreseen but an unintended consequence – a “spillover”10 – of democratic education. Rather, deliberative democrats who are committed to conscious social reproduction must be consciously committed to encouraging students to think of themselves as politically autonomous. My purpose in this section is not to evaluate the claims I have attributed to the strong deliberativist. It is simply to lay them out in a brief but systematic way. Although the strong deliberative position as I have sketched it is not, to my knowledge, explicitly defended by any deliberative democrats, I believe that it could be supported by the exegesis of relevant texts and is motivated by other positions to which many deliberative democrats are committed. Of course, not all deliberative democrats would endorse strong deliberativism. Some have a more permissive view of public deliberation that does not require reliance on public reasons. But I believe that many deliberative democrats would endorse strong deliberativism. And I believe that it is endorsement of or commitment to the strong deliberative position, with its associated claims about autonomy, that explains the reservations some deliberative theorists seem to have about religious schools. Religious Schools and the Three Requirements Now that we have looked more closely into what a deliberatively democratic character includes, we can see why deliberative democrats may doubt that

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religious schools can effectively foster such a character. The reason for this doubt is the underlying doubt that religious schools can or will effectively foster the dispositions to comply with (1) or (1’), (2) or (2’), and (3) or (3’). Why might someone have this underlying doubt? The doubt is nourished by the thought that religious schools encourage attitudes toward what students are taught is the moral truth – including what students are taught to believe is the truth about political outcomes – that are incompatible with a deliberatively democratic character. Religious schools are thought to teach that the content of morality is given by scripture, divine command, natural law, or religious authority. And they are thought to teach that God wishes us to follow the dictates of morality in politics and elsewhere. Strong deliberativism does not require skepticism or irony. The worry about religious schools cannot be that they do not teach students to be skeptical or ironic about their political commitments. Because religious schools are thought to teach that the content of morality is given or sanctioned by one or more authoritative religious sources, critics worry that students’ views about the content of morality – including their views about what political outcomes ought to be – will be sensitive only or primarily to their views about what those sources expound. This, it may be said, will show itself in students’ failure to develop dispositions to comply with (1) or (1’), (2) or (2’), and (3) or (3’). It will therefore show itself in their failure to support their political views autonomously. Citizens disposed to comply with (1) and (1’) are willing to offer one another public reasons or what they believe to be public reasons that they think, on critical reflection, others would find sufficient. It may be claimed that students from religious schools will not be taught to think critically about how other citizens, especially those who are not religious, would receive their views. Or it may be said that although students in religious schools learn that non-religious citizens will not regard their religious arguments as sufficient to justify political outcomes, they will also be taught to explain away others’ rejection of their arguments on the grounds that those who disagree with them are sinful, unfaithful, or benighted. Either way, it may be concluded that students in religious schools may not learn that the legitimacy of political outcomes depends on their being the result of deliberation in which citizens are ready to offer public reasons for their views. Nor will they be taught to offer one another such reasons. Therefore, the worry is that religious schools may not effectively encourage the disposition to comply with (1) or (1’). What of (2) and (2’)? Why might deliberative democrats worry that religious schools will not effectively encourage the dispositions to comply with them? Citizens disposed to comply with (2) and (2’) reject or alter their views if the public reasons they can identify for them seem less compelling than the public reasons others offer for alternative outcomes. If students at

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religious schools think that authoritative religious sources provide the correct answers to political questions, then they may not think that the quality of the public reasons they must offer for their views matters. What matters, they think, is the quality of the religious reasons they have for their views or the force of all their reasons for their views taken together. If they are also taught that public deliberation and the arguments of others are unreliable guides to the truth or are not necessarily reliable guides to the truth, and if they are also taught that in public deliberation their responsibility is to support the truth as they see it, then they will not be disposed to change their views in response to the public reasons offered by others. But now suppose that students from religious schools are taught that they should offer one another public reasons for views they may hold for religious reasons. Even so, it may be thought that these students will be too convinced of the views they think are correct to be properly attentive and responsive to the public reasons offered by their political opponents. More specifically, they may be too convinced of the truth of their own views to be moved by the public reasons that would move them if they were to engage in the right sort of critical reflection. Instead, they will see challenges to their views as threats. They will treat public deliberation as an exercise in political apologetics rather than as an exercise in reasoning and deciding together with fellow citizens. So they will not be disposed to change their views even if they are offered public reasons they would think on critical reflection are better than the public reasons they can muster for their positions. Religious schools may not effectively encourage the disposition to comply with (2) and (2’). Finally, if students who attend religious schools are taught that they possess the truth about what various political outcomes should be in virtue of their access to authoritative religious sources, then they may not learn respect for those who disagree with them. Hence, religious schools may not effectively encourage the disposition to comply with (3). If students are taught that acting contrary to the moral and political truth invites punishment by or alienation from God, then the costs of violating what they take to be the dictates of authoritative religious sources will seem too high. Students thus will not learn to compromise the truth as they see it in order to reach an accommodation with others. Therefore, religious schools may not effectively encourage the disposition to comply with (3’) either. In Defense of Religious Schools What can be said to address these reservations about religious schools? I want to explore two replies, the first of which depends on objections to the strong deliberative position.

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The Enhanced Importance of Mutual Translation Deliberative democrats want public deliberation to serve a legitimating function. According to what I called the legitimacy condition, the fact that a political outcome results from well-conducted deliberation contributes to its legitimacy. As the term “well conducted” suggests, public deliberation must meet certain conditions if it is to serve that function. I am skeptical that philosophers can provide necessary and sufficient conditions for the concepts of accessibility and inaccessibility. I am skeptical that they can pick out a class or classes of reasons that are inherently “public.” And I am skeptical that they can defend the claim that such reasons play the essential roles in public deliberation that they are assigned by (1) and (1’), (2) and (2’), and (3) and (3’). I have laid out my reservations elsewhere (see Weithman 2002). I am also skeptical about the need for so strong a solution to the problem that inaccessible reasons are said to pose. More precisely, I am skeptical of the claim that public deliberation can serve its legitimating function only if participants in public deliberation are prepared to offer one another, and are responsive to, a class of reasons that is inherently public or accessible. (1) and (1’) both imply that citizens should be ready to offer reasons of the same kind to all those with whom they are deliberating, regardless of their interlocutors’ beliefs and the reasons their interlocutors would in fact find persuasive. This implication is, I believe, too strong. Public deliberation can be well-conducted and can serve its legitimating function even if participants satisfy only conditions that are weaker than (1) and (1’). Proponents of the strong deliberative position are correct in claiming that citizens must have certain dispositions or qualities of character if they are to take part properly in well-conducted deliberation. Citizens who take part in public deliberation should be willing to offer considerations in favour of their positions that will enable others to see which reasons they have for them. They must be appropriately responsive to the reactions and replies these reasons evoke. They must be appropriately responsive to the considerations put forward by others in favour of their positions. And they must respect other participants who show they are willing to comply with the requirements of well-conducted deliberation. These dispositions are ingredients of a deliberatively democratic character. If we are to be deliberative democrats, then fostering these dispositions should be among the aims of democratic education. But even if we are to be deliberative democrats, we should not endorse the strong deliberative position. I believe that proponents of the strong deliberative position are mistaken in claiming that citizens must be prepared to offer and must be responsive to reasons that can be identified as inherently public or accessible.

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If this is correct, then the right conception of public deliberation is a much looser one than that which is sometimes associated with the term “deliberative democracy.” I cannot defend an alternative conception of public deliberation here.11 Instead, I want to say something about what future citizens need to be taught over the course of a democratic education if they are to acquire the skills and habits they need to participate in well-conducted public deliberation. I have not disputed the claim that public deliberation is a process of political decision making characterized by the exchange and evaluation of reasons for political outcomes. I have merely argued for loosening what counts as a reason. Because public deliberation is characterized by the exchange and evaluation of reasons, two of the lessons that students will have to learn – two of the most elementary lessons, to be sure – are that the rightness of their political positions may not be as evident to others as it seems to them and that they must guard against the natural human tendency to believe in and defend their positions simply because those positions are theirs.12 Students will also have to learn to identify considerations that tell in favour of their position. This requires that they learn rules of evidence and various forms of rational argument, including deductive, statistical, and probabilistic reasoning. They will have to learn how to convey those considerations to others, discursively and otherwise. If students are to learn to reason together with others – including those who disagree with them – then they must acquire some awareness of how their political opponents will receive their defences of the political outcomes they favour. This entails acquiring some awareness of how their political opponents would react to the possibility that their arguments will carry the day and that the government will adopt the policy they favour for the reasons they offer. To acquire this awareness, it will be helpful if they learn to imagine what it would be like to be forced by authorities to do something for reasons that strike them as wrong on empirical grounds (as a contentious economic argument might), for moral reasons that strike them as reasonable but wrong, and for putative moral reasons the force of which utterly escapes them. They will also have to learn how to interpret and respond to the contributions of others, including those who disagree with them. This will require them to learn to understand, evaluate, and respond to arguments and to see the point of non-argumentative contributions to public deliberation.13 It will require them to learn how to criticize the contributions of others and when to change their own views. It may also require that they acquire a great deal of cultural background knowledge. For one thing, it will be helpful to understand the metaphors and images, including the religious ones, in which others couch their contributions to public deliberation. For another, it will be useful for citizens to understand which differences of wealth, power, and social location, and which individual and collective histories, might

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motivate others’ contributions to public deliberation. Some people’s contributions to debate may be angry, strident, disaffected, or defensive. Public deliberation is facilitated when citizens know which groups have endured histories of oppression or disadvantage, when they know which groups have enjoyed privilege, and when they know the extent to which the histories of oppression and privilege are contested. This is all part of the historical and cultural background that students need to be taught. Even though I have followed other theorists of civic education in assuming that future citizens acquire the knowledge and skills needed for public deliberation in school, there are significant and obvious differences between political discussion in a classroom setting and public deliberation among citizens. The one that concerns me for the moment is that political discussion in a classroom setting is conducted face to face among students who have at least some acquaintance with one another and who can expect to share a classroom in the future. Whatever the forums of political deliberation among citizens – and this itself is a contested matter – political deliberation is not like that. When citizens write letters to newspapers or to political authorities, and when they speak at meetings, they may be exchanging reasons with others whom they do not know. Citizens need to know how to engage in public deliberation. That is, they need to learn how to exchange reasons with the public of their society as such. What I want to suggest is that the various skills, habits, and qualities of character that students need to be taught in the course of a democratic education can all be specified without essential reference to a class of reasons that are inherently public or accessible. I therefore propose an account of a deliberatively democratic character that departs in a crucial respect from what I have referred to as “the strong deliberative position.” An adequate defence of the alternative would have to take up the problem posed by putatively inaccessible reasons. Let me propose two reasons for thinking that the problem might not be as acute as it is sometimes said to be, reasons from which I will ultimately draw lessons about the contribution that religious schools can make to democratic education. First, suppose that the arguments of some of those who rely crucially on non-public reasons can be “translated” by their recipients into arguments that rely only on considerations that the hearers regard as good ones. And suppose that those who offer such arguments have good reasons to think that their arguments can be so translated. Then it is not immediately obvious why those who offer such arguments must be ready to appeal only to reasons drawn from some privileged class. If, for example, the religious arguments of Martin Luther King could be translated into non-religious arguments by those who heard him, and if he had good reason to think that they could be translated into non-religious arguments, then it is not immediately obvious why he should have been ready to offer other reasons in addition.

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Translation of this kind requires considerable background knowledge about others’ religious and moral views of the good life. But such translation is a common enough phenomenon. It can go some way toward mitigating the problems that are said to be posed by citizens’ ineliminable reliance on their conceptions of the good in political argument. If such mutual translation is a part of public deliberation, then the ability and willingness to translate are important elements of a deliberatively democratic character. Second, even when citizens cannot translate one another’s contributions to public deliberation with complete fidelity, the problem posed by infelicitous or partial translation need not be so great, especially if citizens are willing to work for greater fidelity in the course of ongoing discussion. I have argued elsewhere that public deliberation is most plausibly understood as demanding that citizens be ready to critically reflect on their own political arguments in medias res (Weithman 2005). And I have suggested that this critical reflection can be prompted by the contributions and criticisms of others. Citizens uncover and produce public reasons by critically reflecting in the midst of public deliberation. Sometimes these criticisms may be wholesale rejections of arguments or expressions of incomprehension. But criticisms are often most productive when they reflect partial comprehension. The most useful critic might be the one who says, for example, that she has some idea what is meant by saying that abortion should be illegal because fetuses are ensouled at the moment of conception – or that physician-assisted suicide should be illegal because human beings are God’s property “made to last during his ... Pleasure” (Locke 1988) – but who also can explain why she needs to hear more. The possibilities of mutual translation and partial comprehension raise interesting questions for the contents of a deliberatively democratic character.14 Perhaps instead of (1) or (1’), (2) or (2’), and (3) or (3’), such a character includes the readiness to try translating the arguments of others as sympathetically as possible. If so, then the fact that it does has important educational implications. If citizens are to be ready to translate putatively non-public reasons, then students – who are future citizens – will have to be taught how to translate. If some of the non-public reasons they must be taught to translate are religious, then students will have to be taught something about the religious traditions from which those reasons are likely to be drawn. Religious schools can play an important role in this enterprise. By suggesting that the elements of a deliberatively democratic character can be specified without “essential reference” to inherently public or accessible reasons, I do not mean to imply that the concepts of publicity and accessibility do not have a place in giving students a democratic education. What I do mean to claim is that these concepts are not the ones that do the philosophical work in specifying the goal of such an education. Hence, when we try to specify the traits of a deliberatively democratic character,

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we may speak of a disposition to offer and respond to public reasons or to reasons that are accessible to others if we like. But I suggest that we understand these ways of speaking as convenient shorthand, the content of which is given by the disposition to offer considerations the reason-giving force of which others can comprehend or translate into such considerations. In the practice of democratic education, the concepts of publicity and accessibility play a merely heuristic role. A comparison may help make my suggestion plausible. When we say that students must be taught to imagine how their arguments will be received, it might prove convenient to say that they must be taught to imagine themselves in their interlocutors’ shoes. And when we try to teach skills of imaginative and sympathetic identification and of role reversal, we may ask students how they would feel if they were in an opponent’s place. It is difficult to say with any precision just what it is that students are being asked to imagine. Are they being asked to imagine they are someone else? Or that they remain metaphysically the same person but with another person’s preferences and history? And, if the latter, how are they to know how they – given their own preferences and history – would feel if they had someone else’s preferences instead or additionally? Yet, for all these difficulties, the concept of asking people to imagine themselves in someone else’s place can be of pedagogical use provided that it is not pressed too hard. The same, I believe, is true of the concept of accessible or public reasons. Faith in the Underpinnings of Deliberative Democracy Both (3) and (3’) require citizens to respect other participants in public deliberation who comply with the requirements of the deliberative position and of the free and equal and the common interest conditions. Which attitudes should the good citizen have toward these conditions? Which attitudes toward these conditions should a democratic education try to instill? The claim that good citizens of a liberal democracy must be skeptical or open to the possibility that their moral and political views are wrong has a long and distinguished pedigree.15 It finds its most famous expression in Learned Hand’s well-known remark that “the spirit of liberty is the spirit which is not too sure that it is right” (Gunther 1994, 549). There are echoes of it in John Dewey and Richard Rorty. Frank Michelman, a prominent defender of deliberative democracy, implies that citizens of a deliberative democracy should have “an attitude of openness to ethical evolution through political engagement” (1989, 448). The views of Hand, Dewey, Rorty, and Michelman might be thought to imply that citizens should be skeptical about the demands of the free and equal and the common interest conditions or should be open to the possibility that those conditions are wrong. As I pointed out in the second section, strong deliberativism does not require skepticism or irony about one’s views of political outcomes. It is

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therefore hard to see why it should be thought to require skepticism about or ironic detachment from the fundamental commitments of deliberative democracy itself, including the free and equal and the common interest conditions. Indeed, I suggest that citizens may have very different attitudes toward these conditions, attitudes that find expression in their responses to those whose participation in public deliberation shows that they think these conditions are not binding. When we ask which qualities make citizens good participants in wellconducted deliberation, we are not asking about which qualities would make them good participants in ideal deliberation. We are asking about which traits make them good participants in well-conducted deliberation in the world that we – citizens of liberal democracies early in the twenty-first century – actually inhabit. Our world is unfortunately one in which some people who participate in public deliberation reject the free and equal and the common interest conditions. Sometimes they propose policies that would deny freedom and equality to some or that would undermine the conditions for regulating deliberation by the demands of the common interest. Sometimes they betray their denial of these assumptions by their political conduct. So citizens in the actual world will encounter prejudice, bigotry, and blatantly self-interested political behaviour. It is important that some citizens at least respond with indignation and outrage to proposals that would deny citizens the rights and opportunities they need to participate in public deliberation as free equals. Their responses should not simply reflect the view that citizens who put forward these proposals have made a mistake or that their reasoning has lapsed. Rather, their responses should reflect the view that proposals to institutionalize the inequality of citizens, for example, ought never to be entertained in public deliberation and that someone who proposes this has crossed a line citizens simply should not cross. The citizens I have in mind should be able to say what is wrong with a proposal that denies the equality of citizens. And they should be ready to say what is wrong with the proposal. But the tenor and emotional coloration of their responses should also make it clear that they think such proposals are beyond the pale. These reflections suggest that a deliberatively democratic character includes or can include certain propositional-cum-moral attitudes toward the contents of the free and equal condition and the common interest condition. They suggest that a deliberatively democratic character includes or can include attitudes of deep conviction about the truth of those conditions and that these cognitive attitudes are tied to the dispositions to powerful emotional responses when the conditions are disregarded.16 Perhaps a deliberatively democratic character includes or can include a faith in the moral underpinnings of deliberative democracy that, like Barbara Jordan’s faith in the constitution, is “whole ... complete ... [and] total.”17

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I used the phrase “includes or can include” in the previous paragraph because of a possibility that I raised earlier – that a deliberatively democratic character is disjunctive. The possibility that such a character is disjunctive opens the possibility that there is no one set of attitudes toward the fundamental commitments of deliberative democracy that a deliberatively democratic character includes. Perhaps not all citizens need to have the sort of deep faith in those commitments I suggested, and perhaps not all need to be prepared to respond in the ways I associated with those attitudes. But I persist in thinking that some may and indeed should. Responses of this kind fall within the range of appropriate responses, in part because they may help the person who disregards the free and equal and the common interest conditions to appreciate the gravity of his violation. What role can religious schools play in instilling a deliberatively democratic character so understood? Recall what grounded the worry that religious schools are not effective at instilling a deliberatively democratic character. That worry was founded on the view that religious schools instill attitudes toward moral truths that are incompatible with the requirements of deliberative democracy. Once we see that a deliberatively democratic character can include an uncompromising attitude toward certain moral truths, the question of whether religious schools can effectively instill a deliberatively democratic character becomes more complicated than it originally seemed. Religious schools might be quite effective at instilling such an attitude toward the moral views that underpin deliberative democracy. They might, for example, be effective at teaching uncompromising attitudes toward the claims that human beings are moral equals,18 that moral equality requires political equality, and that politics should try to promote the common interests of free and equal citizens. Whether religious schools do in fact encourage the development of some elements of a deliberatively democratic character – by encouraging uncompromising belief in the underpinnings of deliberative democracy or by encouraging students to place a faith in moral and political equality that is “whole,” “complete,” and “total” – is, of course, an empirical question. Acknowledgments This chapter previously appeared in Religious Voices in Public Places, edited by Nigel Biggar and Linda Hogan (2009) and is reprinted by permission of Oxford University Press. It was originally prepared for a conference called “Deliberative Democracy: Theory and Practice,” held at the University of Montreal, and for a conference called “Religious Voices in Public Places,” sponsored by the Institute for the Advanced Study of Religion, Ethics, and Public Life and held at the University of Leeds. I am grateful to Phil Quinn for helpful comments on an earlier draft.



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Notes 1 There are many versions of deliberative democracy on offer. According to some, deliberation is to be conducted largely by political elites. Ordinary citizens govern themselves on

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the basis of deliberation by informing themselves about public affairs and by making sure that elites reach political decisions by deliberation rather than bargaining. According to more populist versions of deliberative democracy, ordinary citizens are to take an active part in public deliberation and decision making. Populist versions of deliberative democracy are, I believe, the most interesting versions of the theory. It is with these versions of deliberative democracy that I am concerned in this chapter. See Gutmann (1997, 39ff., 45, 287ff.). For an extended defence of what is, in effect, the invisible hand view, see McConnell (2002); for her reply, see Gutmann, “Can Publicly Funded Schools Legitimately Teach Values in a Constitutional Democracy?” in NOMOS 43: Moral and Political Education (New York: New York University Press, 2002). Gutmann (1999, 116, 127); the phrase “democratic character” is used on page 127. These requirements are developed and defended in the companion piece to this chapter, Weithman (2005). See Weithman (2005). I am grateful to Melissa Williams for helpful discussion on this point. For the claim that democratic education should promote autonomy, see Levinson (1999); for the claim that it should facilitate autonomy, see Brighouse (2000). It is important to distinguish defending education for autonomy on liberal grounds and defending it on deliberative democratic grounds. Liberal defences of autonomy and education for autonomy begin with the premise that autonomy is an essential ingredient of, or a necessary condition for, a well-lived human life. These arguments add that education should encourage or enable students eventually to lead good lives. They conclude that education should promote or facilitate autonomy. Deliberative democratic arguments begin not with claims about the good life but with claims about well-conducted deliberation and the need for citizens to hold their beliefs, or some of their beliefs, autonomously if they are to take part in it. They add that education should equip students eventually to be good citizens. They conclude that education should teach students to hold their views, or some of their views, autonomously. The distinction between these two lines of argument matters: those who think that autonomy is part of or a condition for a good life use the term “autonomy” to refer to a different ideal of character than those who use it to refer to traits normally necessary for participation in public deliberation. The questions of why public reasons would be compelling to someone who adopts this point of view and of why those reasons have authority are vital. Unfortunately, I cannot pursue them here. Why these reasons are authoritative for citizens as such is an important question. So, too, is the question of whether autonomy requires that citizens understand why those reasons are authoritative. Unfortunately, I cannot go into these matters here. I take them up in Weithman (2002, Chapter 7). To my knowledge, the first use of the “spillover” metaphor to describe such consequences is in Macedo (1995, 557, 574). I would argue that it is one according to which citizens, speaking as such, can contribute to well-conducted public deliberation by offering a range of reasons, stories and narratives, artistic contributions, political and social criticism, as well as discursive argument. The challenge facing anyone who defends this conception of deliberation is showing that such contributions have sufficient cognitive content to advance a process that can be called “deliberation” or “collective reasoning.” I take it that the latter lesson is – or perhaps is entailed by – what theorists of democratic education have in mind when they use the metaphor of attaining “distance” from one’s own views; see Gutmann (1999, 77). It might be argued that this educational goal can be realized only if students are part of more diverse student bodies than are typical at religious schools. I do not deny that being part of a diverse student body is educationally valuable. I do believe it important, however, to press two questions about this value. One is whether the value is sufficient to override other values that can be realized only if a school is religiously homogeneous. The other is whether, even if it is sufficient, it ought to override these competing values at every stage of education. In particular, I think it important to ask about which educational conditions

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are conducive to the production of what I call “secure believers.” Such religious believers accept the defeasible presumption that the religious and ethical diversity typical of contemporary liberal democracies is neither regrettable nor threatening, and therefore they do not feel embattled. Perhaps the development of such security requires an insulated environment early in life. Unfortunately, I cannot pursue this matter here. For a discussion of religious embattlement, with interesting empirical findings, see Smith (1999). Interestingly, Rawls seems to deny both of these possibilities: “Citizens realize that they cannot reach agreement or even approach mutual understanding on the basis of their irreconcilable comprehensive doctrines” (1999, 129; emphasis added). See the nuanced remarks about liberalism and skepticism in Shklar (1989, 25). One of the most striking things about the literature on democratic education – and, for that matter, about the large bodies of literature that have grown up in recent years on democratic character and civic virtue – is how little explicit discussion there is of the emotional life. This is a surprising lacuna in the literature on democratic character and civic virtue since the virtues have traditionally been understood to regulate passions such as anger, cupidity, and the sense of honour and affront. It is an even more surprising omission from the literature on democratic education since shaping children and adolescents into mature adults is in large part a shaping of their emotional lives. See the epigraph at the opening of this chapter. For an interesting exploration of the view that the moral equality of humanity is an irreducibly religious view, see Waldron (2002a).

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Part 2 Deliberative Democracy, Constitutions, and the Boundaries of Deliberation

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4 Open versus Closed Constitutional Negotiation Simone Chambers

A perennial question of constitutional negotiation is this: When are closed or even secret negotiations among elites appropriate, and when should debate be open and inclusive? Canada’s own experience in constitutional negotiation appears to have swung from one extreme to the other. One of the most striking differences between the Meech Lake and Charlottetown rounds in the Canadian constitutional saga was the move from closed-door elite negotiation to open popular consultation. Critics of Meech Lake never tired of pointing out that the process lacked transparency, excluded the public, and, in doing so, severely undermined the legitimacy of the final product. In response to his critics, and when failure of the accord was evident, Prime Minister Brian Mulroney promised, “Next time I’ll consult and I’ll consult and I’ll consult and I’ll wear the Canadian public out. I will not leave one voice unheard” (quoted in Bothwell 1995, 217). Consequently, the next round of Canadian constitutional negotiations included many forums for popular consultation, ending in an inclusive, fully public debate in the form of a referendum campaign. To be sure, elites met behind closed doors and hammered out much of the final document in camera. Nevertheless, by 1992 there was a new spirit of constitution making that stressed inclusion, democracy, and above all publicity. Consensus, transparency, and ownership became central to the process. Moving constitutional negotiations out of smoke-filled back rooms has its risks, however. Many skeptics of publicity might say that the open and inclusive nature of the Charlottetown round made agreement impossible (Ajzenstat 1994, 112-25). Not only does it become impossible to please all parties, but also a fully public debate is usually shallow, pandering, and easily hijacked by divisive passions and clever orators. Referendum campaigns are often unpromising contexts in which to deliberate about constitutional issues with the depth and seriousness they require (Lupia and Johnston 2001).

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In evaluating the process initiated in the Charlottetown round of constitutional negotiations, two opposing views emerge with regard to the salutary or non-salutary effect of publicity on constitutional debate. In the first view, constitutional debate benefits from moving into wide public forums because doing so ensures that all views are heard and that participants are accountable to the full range of interests and values in the polity. Furthermore, only through publicity do citizens come to have a sense of ownership of a constitution. Thus, public participation enhances legitimacy and stability. Opposed to this is the view that high-quality constitutional debate can take place only when shielded from the public and the glare of publicity. Although the public should perhaps take part in ratification at some level, substantive debate needs protection from publicity. In this view, too much publicity jeopardizes the quality of debate and makes agreement almost impossible. In this chapter, I try to sort out some of the theoretical issues behind these differing assessments of the effect of publicity on constitutional debate. Successful constitutional negotiation will have to find some happy balance between closed and open debate; a clearer idea of the salutary and negative effects of publicity might be helpful in finding that balance. In assessing publicity’s effect on deliberation, I begin with deliberative democratic theory. Theories of deliberative democracy tend to stress the salutary effect of publicity, but as I will show a closer view of the dynamics of public communication can also shed light on how publicity can undermine the deliberative ideal. Arguments for Publicity All theories of deliberative democracy contain something that could be called a publicity principle. It has many forms but usually involves a claim about the positive effects of going public with the reasons and arguments backing up a policy, proposal, or claim. Publicity promotes the use of public reason, and I use the term “public reason” here in a generic sense: public reason involves justification and accountability directed at a public characterized by pluralism.1 Public reasons are reasons that this public at large could accept. The pressure to adopt public reason works via two mechanisms: I will call them the democratic and the Socratic mechanisms. The democratic dynamic of publicity comes into play through expectations about legitimacy. Public policy ought to be in the general interest. Within an open forum, defenders of a public policy will feel compelled to articulate their claims in public interest terms. The logic here is that publicly arguing for a policy on the ground that it makes you better off, say, is not a public reason and by itself is not likely to get very far within a modern liberal democratic public sphere. The democratic dynamic makes obviously selfish, narrow, or sectarian defences of public policy, especially public policy governing moral disagreements or constitutional essentials, difficult to pursue in public.2

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Publicity has a democratic effect on deliberation by pushing participants to use “common good” arguments rather than ones with limited or sectarian appeal. I will call this a contrast between public reason and private reason.3 Private reason is sometimes selfish or self-interested, but it need not be; it refers to reasons and justifications the public does not share. Candidates for this category include reasons that appeal to some authority (e.g., scripture), good (e.g., the priority of my or my group’s well-being), or truth (e.g., God is dead) that is not shared by all and could never be persuasive to all. Such reasons are inappropriate justifications for public policy because they fail a democratic accountability test. From the Socratic point of view, publicity fosters the use of public reason by encouraging participants to examine their own beliefs and arguments. Sisela Bok, for example, nicely describes this Socratic element by saying that having to argue in public often creates “the necessity to articulate one’s position carefully, to defend it against unexpected counter arguments, to take opposing points of view into consideration, to reveal the steps of reasoning one has used, and to state openly the principles to which one appeals” (1982, 114).4 Publicity has a Socratic effect on deliberation because, in forcing interlocutors to respond to others, it forces them to give an account and thus to offer reasons and justifications. The contrast here is not between public reason and private reason. It is between public reason and some form of weak, unexamined, or ill-defended “reason.” But what is this alternative form of reasoning? Deliberative theory does not have a clear answer to this question. It does not have a clear answer because there is a tendency to conflate two meanings of the term “publicity.” The sense of publicity associated with the democratic effect is “in public”: exposing deliberation to public scrutiny forces interlocutors to adopt the language of public interest (sometimes hypocritically). The second sense of publicity associated with the Socratic dimension is not “in public” but “in dialogue with others.” The public nature here resides in dialogue taking place in the space between people, not in its being in an open public sphere. This second, Socratic sense of publicity can occur hidden from public view. Indeed, some theorists, like Elster, argue that its achievement is much more likely in secret. Elster argues that, generally speaking, secrecy rather than publicity (in the “in public” sense) is desirable for high-quality deliberation, especially constitutional deliberation. Although he agrees that publicity produces the democratic effect of forcing people to argue in public interest terms, he adds that sometimes it also has a very negative effect on the quality of discourse. To illustrate this second effect, he compares the Constitutional Convention of Philadelphia of 1787, which deliberated in secret, and the Assemblée Constituante in France of 1789, which deliberated in public. Elster concludes that “many of the debates at the Federal Convention were indeed of high quality: remarkably free from cant and remarkably grounded in rational

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argument. By contrast, the discussions of the Assemblée Constituante were heavily tainted with rhetoric, demagoguery, and overbidding” (1995, 225). Elster himself is dissatisfied with this conclusion because it leaves us with an irresolvable trade-off. On the one hand, “secrecy tends to induce bargaining, and publicity to induce argument,” and arguing (at least with regard to constitutional essentials) is better than bargaining because arguing encourages participants to think in terms of the common good. On the other hand, “private settings are better than public settings because they leave less room for pre-commitment strategies and overbidding” (250, 252). But all things being equal, Elster counsels secrecy over publicity in constitutional negotiations. The more inclusive and open discussions are, the more easily they can be hijacked by demagogues. Elster is not the only one to defend secrecy because it enhances deliberation and makes it more likely that participants will use public reason. Interestingly enough, Gutmann and Thompson, while defending a strong principle of publicity at the level of normative theory, nevertheless acknowledge that, as an empirical fact, secrecy is sometimes better than publicity for maintaining quality. They also appeal to the Philadelphia Constitutional Convention of 1787 as an illustration of the beneficial effects of secrecy. Here they side with Madison, a defender of secrecy, against Jefferson, a critic of secrecy, because excluding the public at large contributed to the high quality of debate. Because sessions were secret, “members could speak candidly, change their positions, and accept compromises without constantly worrying about what the public and the press might say” (Gutmann and Thompson 1996, 115). They argue that deliberative 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 ... Secrecy also serves another deliberative purpose: Legislators remain freer to change their minds about a Bill in response to on going discussions” (116). Gutmann and Thompson go back and forth between the two senses of publicity I noted above without acknowledging the distinction. When defending the salutary effects of publicity, they are usually referring to the benefits of critical dialogue. When outlining the harmful effects of publicity, they are usually talking about going public. Rethinking Publicity This brief analysis suggests the need to disaggregate the Socratic and democratic elements of deliberation and introduces a third type of reason to the public/private reason distinction. Elster’s work makes the need for an additional category especially evident. Private reason appeals to a restricted audience, with the most restricted being oneself. Public reason, which Elster (following Jürgen Habermas) calls arguing, appeals to a generalized audience.

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Figure 4.1 Dimensions of public reason

Socratic dimension

Democratic dimension Public reason

Private reason

Public reason

Robust reasoning and general appeal

Robust reasoning and bargaining and/or particular appeal

Plebiscitary rhetoric

Unexamined reasoning and general appeal

Unexamined reasoning and particular appeal

Ideally, the reason should be universalistic, impartial, or appeal to a common good. What goes wrong when we move from secret deliberation to public deliberation? The problem is not that there are countervailing forces that push speakers back into the use of private reason. The orators of the Assemblée Constituante were not accused of introducing private reason or engaging in divisive bargaining. The problem Elster points to is that a type of ersatz public reason comes into play. Let’s call it “plebiscitary rhetoric.” Speakers still appeal to what they think are common or public values but with a twist. Under the glare of publicity and without the critical influence of a dialogue partner, these arguments are often unexamined and may be shallow, poorly reasoned, pandering, or appeal to the worst we have in common. Although not as troubled by the threat of demagogues as Elster, Gutmann and Thompson are also concerned with what I have called plebiscitary rhetoric. The problems associated with going public are problems not of private reason but of shallow reasoning: wanting to please the largest possible number of people or wanting to appear firm and decisive in the public’s eye. Thus, the appeal is general, but the content is suspect. To grapple with some of these issues, I have developed a typology outlined in Figure 4.1. I stress that it is a heuristic device that cannot capture the fluidity of real debate, which naturally flows back and forth between these categories. But perhaps it will be helpful in fixing terms.5 The horizontal axis represents the democratic dimension, which deals with questions of justification and accountability under conditions of pluralism. This has been the primary focus of much normative deliberative democratic theory. It includes debates about the place of bargaining within deliberation as well as about the place of religious, cultural, and comprehensive moral views in deliberation. The vertical axis highlights the Socratic

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dimension. Although there has been an interesting and lively discussion about the epistemic status of democratic deliberation, this discussion has not, for the most part, tied these questions to the public nature of deliberation (Estlund 1997).6 The upper right quadrant of Figure 4.1 contains well-reasoned debate that takes private reason as its starting point. Now, there are many public policy issues where appeal to private reasons, both in the sense of individual or group utility maximization and in the sense of appeal to unshared comprehensive values or controversial truth claims, is appropriate. Furthermore, bargaining is often the fairest method of resolving a dispute, and in some contexts appealing to deep but unshared beliefs – for example, an indigenous people’s religious ontology – is also acceptable. We cannot expect nor do we need to expect that every contribution to public debate will meet the high standard of public reason. When and where it is legitimate to expect citizens and their representatives to appeal to general-interest arguments or seek impartiality is a much-debated issue, one I will not address here. Instead, I am simply going to assume, without much argument, that especially with respect to constitutional debate there are questions facing a public where we would want participants to move from the top right quadrant into the top left quadrant. The question that interests me is not so much when we ought to expect citizens and their representatives to appeal to public reason but whether appeal to public reason (in the full sense of a convergence of the Socratic and democratic dimensions) is even conceivable in a broad public forum under conditions of mass democracy.7 The bottom left quadrant of Figure 4.1 contains debate that appeals to a broad public but where the reasoning is often unexamined. Here we may think of plebiscitary rhetoric as running along a continuum from mild pandering to manipulative demagoguery. Although private reason may not have entered debate, what we normally think of as the elements of reasonable deliberation have certainly disappeared. Plebiscitary rhetoric can be broken down into three broad and familiar strategies: manipulation, pandering, and image maintenance. Manipulation and pandering are often difficult to distinguish from one another. Take, for example, the modern dependence on sophisticated public opinion research. On the one hand, it makes public figures appear to be empty shells filled with data from focus groups; the most important reason for recommending a policy is often the empirical fact that it is popular. This is not a public reason strictly speaking, although neither is it a private reason. On the other hand, public opinion research is now such a precision instrument that it often uncovers which “strings to pull” or “buttons to push” to gain support for unpopular policies.8 When candidates and policies are marketed, pandering and manipulation are indistinguishable.

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Turning to the third strategy, image maintenance, leads to the last plebiscitary strategy: image maintenance. Here the concern is with the way in which public speech enhances or detracts from an image rather than the way in which public speech supports or criticizes a proposal. Speakers, for example, do not want to “look weak” by changing their minds and thus are resistant to good arguments. Deliberation assumes that people change their minds in light of arguments (see Mackie 2002). If full publicity makes such change unlikely, then approximating deliberation in an open public forum becomes equally unlikely. This is a serious problem in the contemporary public sphere, where being persuaded by arguments can often be interpreted in the press as “flip-flopping.” The bottom right quadrant of Figure 4.1 speaks for itself. It potentially contains the worst that a public sphere can offer. I am primarily interested, however, in what goes on in the top left quadrant. Here is where the Socratic and democratic elements converge. We may understand that convergence sequentially or non-sequentially. In the sequential understanding, one can imagine small-group, closed Socratic debate interspersed with large-group, open democratic ratification. Gutmann and Thompson argue that this was the virtue of the American constitutional process. In the non-sequential model, we can think of joining the Socratic and democratic moments in one conversation either in public or in a more sheltered setting. I want to investigate the possibility of the non-sequential model in the open public sphere. Although some sequentialism is inevitable in modern democracies, it is important that we avoid a strict division of labour between the Socratic and democratic dimensions, whereby all serious deliberation is by sequestered elites and the public is asked only for thumbs up or down. In other words, the model of the Constitutional Convention of 1787 is unacceptable. The secret meetings were dominated by private reason in a way that we today would find objectionable, and the public process of ratification did not include citizens in meaningful deliberation.9 In the American case, citizen participation appears to fall far short of the ideals of deliberative democracy. Although it is true that modern mass democracy requires a division of labour between the public and those who write and sometimes negotiate a constitution, we do not want that division of labour to exclude citizens altogether from substantive deliberation about the issues. Ideally, what we want is a public sphere not entirely dominated by plebiscitary reason and closed sessions not entirely dominated by private reason. Realistically, there will always be a plebiscitary effect in public discourse: the critical quality of deliberation will decrease as audience size increases. The empirical evidence for this seems clear. This should be understood as one of the “circumstances” of modern mass democracy, not as a carte blanche to go behind closed doors.10 In thinking through inclusive constitutional

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negotiation processes, designers must grapple with this fact and look for ways of minimizing the plebiscitary effect in public. Conversely, we will always need to have closed door sessions, shielded from the public. Here it is important that we try to protect the process against the domination of private reasons. In public, we need to be attentive to circumstances that threaten the Socratic element of deliberation. Behind closed doors, we need to be attentive to circumstances that threaten the democratic dimension. Both dimensions are required for high-quality democratic deliberation. Negotiating a Constitution Retreat into Safe Havens The ills of plebiscitary rhetoric are familiar. From academic circles to pundits and throughout the popular and elite press, there is constant lament about the quality of debate in the public sphere. Everybody is aware of it even if no one really knows what to do about it. One common response to the low quality of public debate is to try to bypass the broad public sphere. Theories of deliberative democracy often attempt to identify or construct safe havens of deliberation – face-to-face encounters between citizens and between citizens and elites, insulated from certain negative or distorting effects of the broader public sphere. To be sure, these safe havens are not simply a response to plebiscitary rhetoric. Efficiency and manageability, especially when drafting constitutional language, also call for small-group encounters not overly encumbered with publicity requirements. Deliberative opinion polls, citizen juries, and citizen assemblies are examples of such citizen-centred deliberative experiments,11 as were the five national theme conferences undertaken in 1992 as consultative initiatives during the Charlottetown round of constitutional talks (see Fishkin 1997 and Gastil 2000). Safe havens are designed to promote dialogue, not monologue; they are places to exchange ideas, not deliver speeches; communication is unmediated and symmetrical. Votes rarely occur; the stress is on substantive argument, not numerical superiority. The result is that opinions are better informed and more reasonable in the sense that participants are more likely to take other people’s concerns and interests into account. Safe havens, when well designed, promote the Socratic dimension of deliberation. These experiments, participatory venues, and deliberative forums are important for many reasons. They can give us a glimpse of what deliberative opinion might look like; they are experiments in institutional design that can perhaps be applied in other contexts; and, for the participants themselves, they are important experiences in citizenship. The 1992 conferences were hugely successful as deliberative experiments (Chambers 1998). Similar initiatives are observable in many constitutional processes around the world, the hallmark of a trend

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in constitution making that stresses inclusion of non-traditional voices. Research in this area is now well advanced, with numerous innovative institutional designs from which to choose. These experiments have limitations, however. If we begin to think that these venues are the only places in which deliberation can take place, then we risk turning our backs on the broader democratic public sphere as a place to pursue reasonable politics.12 These venues often lack authority and are only weakly consultative, but more problematically they bring together only a small sample of the citizen body. Their democratic credentials are suspect. They usually need some further process of ratification that involves the mass public through a referendum, plebiscite, or national election. No matter how well designed these initial safe havens are, if the broad public sphere is dominated by plebiscitary rhetoric, then the high level of deliberative reasoning will be diluted or disappear altogether when debate moves into the broad public sphere. This is a common story in constitutional negotiation. The goodwill, constructive reasoning, and flexibility often produced in safe havens fail to re-emerge in a subsequent referendum campaign.13 Referendum politics is mass politics. The fact is that if we wish to involve large numbers of citizens in constitutional politics, then that politics will be highly mediated and involve speaker/hearer asymmetry. From the political speech to the infomercial, asymmetrical mediated communication dominates our public space. This is a fact of mass democracy. If theories of deliberative democracy assume that all such public exchanges are “bad,” then they limit themselves and risk becoming overly utopian. Deliberative theory risks becoming marginal to constitutional politics. As that politics becomes more populist – that is, as the expectation grows that citizens must be involved in ratification – deliberative theory will become less relevant. As the gap widens between what goes on in safe havens between face-to-face interlocutors and what goes on in the mass public, democratic ratification of deliberative outcomes will become increasingly difficult. It is not feasible to try to deal with this problem by attempting to avoid popular ratification.14 In addition to symmetrical face-to-face encounters, theories of deliberative democracy need to develop an analysis of mediated and asymmetrical communication along deliberative lines. In other words, to pursue the possibilities of bringing together the Socratic and democratic moments in broad public forums, we must look to the possibility of a deliberative orator. Three types of communication dominated the final stage of the South African constitutional debate: closed sessions of hard bargaining, rhetorical appeals by national leaders, notably Nelson Mandela, and a widespread public dialogue that ran the gamut from face-to-face town meetings to nationally televised exchanges between elite experts. I have argued elsewhere that the South African experience embodied a deliberative ideal of legitimacy and that this was particularly evident in the inclusion of so many citizens

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in a process of consultation and discussion (Chambers 2004b). Asymmetrical, highly mediated appeals of leaders in the broad public sphere were an essential component in the success of the face-to-face initiatives. The fact that polarizing, plebiscitary rhetoric did not hopelessly dominate the broad public sphere significantly contributed to the constitutional process in South Africa. I want to suggest that a certain form of deliberative rhetoric, exemplified by Mandela, accompanied the face-to-face discussions of citizens and indeed facilitated such discussions by diffusing anger and divisive argumentation. Mass media, sound bites, and images communicated Mandela’s rhetoric. Nevertheless, this rhetoric facilitated public reason in both of the senses we have been using. This is to say that Mandela appealed to both a form of democratic reasoning and a form of Socratic reasoning in presenting the case for the constitutional order to the public. It is perhaps moot to ask whether, without Mandela, the South African escape from apartheid could have been achieved or achieved with so little bloodshed. It seems unlikely, however, that procedures alone, however well designed, can fully account for this success. If leaders had resorted to plebiscitary rhetoric, then no amount of institutional design would have been able to raise the level of debate, even in small face-to-face forums.15 The tenor of the broad public sphere shapes the possibility of smaller, face-to-face encounters. The broad public sphere will never be dialogical, but perhaps it can be deliberative. This involves achieving clarity on the nature of deliberative as opposed to plebiscitary rhetoric and promoting the former while criticizing the latter. I do not have a solution to the problem of plebiscitary rhetoric. In a sense, there is no solution since plebiscitary reason is a permanent and unavoidable feature of the democratic public sphere. I can offer no institutional or procedural guarantees that only the Mandelas of this world rather than the Mirabeaus gain the ear of the public. I am convinced, however, that the answer cannot necessarily be found in minimizing the opportunity for either a Mandela or a Mirabeau to gain public influence. This strategy involves moving essential debates out of the public eye and involving citizens in deliberation in safe havens. This strategy risks ceding the broader public sphere of asymmetrical, mediated communication fully to plebiscitary rhetoric. Instead, theories of deliberative democracy should develop critical standards of rhetoric through which to call speakers to account. Rather than restricting criticism to procedural considerations (especially conditions of asymmetry and mediation), deliberative democratic theory should expand its critical perspective to include standards for deliberative rhetoric. Secret Negotiations I turn now to the horizontal axis of Figure 4.1 and to the dangers facing deliberation when it goes in camera. Although there is no guarantee that

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closed sessions will necessarily achieve a high level of Socratic reasoning, many of the pressures to adopt plebiscitary rhetoric will be absent. Here the threat to public reason is not plebiscitary reason but private reason. In the literature on deliberative democracy, private reason has two forms. In the first form, participants abandon arguing in favour of bargaining. Rather than seeking to persuade through appeal to broad public interest arguments, participants further their claims through threats and offers of log-rolling and pay-offs. By contrast, in the open public, when a pressing national issue is on the agenda, participants are less likely or less willing to appear as maximizers of a particular interest or as spoilers if their group does not get concessions.16 In the second form, private reason enters when participants appeal to reasons that are sectarian or embedded in comprehensive worldviews not widely shared by the public. To distinguish this form from bargaining, I will call it the problem of particularity. As with bargaining, the dynamic of particularity is such that, as the audience widens and the forum becomes more public, speakers will have to make their arguments more general; as the audience narrows and there is less publicity, the pressure to widen appeals diminishes.17 We can all think of counter-examples, of course: crude logrolling, spoiling threats, or blatant sectarian arguments made in broad public forums.18 But it is also the case that elites who persist in pursuing these strategies, especially regarding deep constitutional issues, or who fail to make any attempt to seek out public reasons, are often marginalized in democratic forums. Private reason may display a high level of Socratic critical force. These appeals may be well articulated, thought through, and well grounded. So, for example, Gutmann and Thompson can praise the quality of deliberation at the Constitutional Convention in Philadelphia and Elster can note that it was “remarkably free of cant.” But today we might also find this particular deliberative forum to be suspiciously free of points of view other than the enlightened republicanism of Christian propertied males of European descent as well as overly dominated by bargaining. Although their deliberations resulted in a document that has proven impressively resilient and flexible in accommodating new claims, there is a strong case to be made that the fact that slavery was an issue bargained over and not argued over in Philadelphia was made possible by the secret and closed character of the proceedings. The question now is how to reduce the risk that closed-door deliberations will be particularist and/or dominated by bargaining. We can encourage the use of public reason in secret by insisting on a diversity of opinion – reproducing, as best we can, the critical function of pluralism within the deliberative body. We might not know what is said, but we should know who is invited to speak. On fundamental questions that affect the broad public, the more secret and closed the debate, the more

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important the representation of all possible points of view. This representation safeguards against one set of interests dominating debate. Thus, although it might be necessary for deliberation to be secret, it is essential that participation be made public. Publicizing the guest list will not rule out bargaining, but what is wrong with bargaining? We might want to say that, when elites begin horse-trading in, say, human rights and basic justice, fundamental questions of legitimacy can easily get lost in the trade. Human rights are what we should be defending with argument. Yet, although this is true, political actors must also agree to human rights and write them into documents that require signatures. Human rights are justified by argument but entrenched through politics, and politics often requires bargaining. To return to our South African example, parties could never have reached a settlement if they had not gone behind closed doors and hammered out agreements in hard bargaining sessions. What is crucial is one’s reason for bargaining instead of arguing, and there are often very good reasons to rely on a bargaining model of dispute resolution. But notice that this way of thinking about it makes deliberation – that is, arguing – conceptually prior to bargaining. We need to argue about why we need to bargain. Empirically, this means that closed-door bargaining itself must be the topic of open debate.19 As with most constitutional negotiations, many of the clauses in the South African constitution were the result of hard bargaining. Not only did these compromises have to withstand a broader public scrutiny, but also the very role and frequency of closed-door bargaining became a topic of national debate. As in the Canadian case, an increased role for the public in constitutional debate was partially the result of widespread criticism of how closed and bargain oriented the early negotiations were (Gloppen 1997). Yet, given a lexical ordering of arguing before bargaining, the political process should be fluid, with a back and forth between closed bargaining and open public debate. Bargaining is kept in check by frequently exposing the process to the light of publicity. Conclusion The democratic public sphere is a huge and amorphous entity: there is not really one public sphere but many public spheres made up of countless crisscrossing conversations in a multiplicity of venues, from talk radio to house committees, from newspaper editorials to meetings in church basements. It is always risky, of course, to make sweeping generalizations about the abstract construct of the public sphere. Furthermore, public spheres vary from national context to national context, a factor especially important when it comes to constitutional debates. Finally, there are many gradations of openness and closedness. My intention here has been to investigate how we conceptualize the problem of open versus closed sessions when thinking about constitutional negotiations and to point out, in rather broad strokes,

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some factors we need to keep in mind when designing constitutional processes. When confronted with the problem of plebiscitary rhetoric in the broad public sphere, deliberative democratic theory offers two methods of avoidance, one for elites and framers, the other for ordinary citizens. With regard to elites and framers, the conclusion is that sometimes, perhaps often, crucial parts of constitutional negotiation must go in camera. To use Gutmann and Thompson’s formulation, this is a “way of encouraging better discussion and fuller consideration” of proposals (1996, 116). When deliberation takes place in secret, elites need not worry so much about how their arguments will play in Peoria. I have no quarrel with this conclusion but have offered two caveats. First, like Gutmann and Thompson, I think that it must be possible to publicly discuss the need to go behind closed doors. Second, and even more important, the public needs to know who is going into the back room. In other words, what people say and how they argue sometimes need to be shielded from the public but not the fact that they are negotiating or facts about who is negotiating. Although elites avoid the temptations of plebiscitary rhetoric by deliberating in secret, the citizen public avoids plebiscitary rhetoric by deliberating in safe havens. Such havens can include town meetings, consultative policy initiatives, deliberative opinion polls, roving commissions, and citizen assemblies. Such initiatives are very encouraging from a democratic point of view: there really are people out there who are interested in pursuing deliberative politics and who will expend civic energy on listening to what others have to say. Although many of these havens are public (i.e., not secret), their institutional design is premised on a mistrust of asymmetrical, mediated communication. Like elites talking in secret, these havens attempt to escape the modern mass public sphere and retreat into a dialogical (Socratic) space. In the cases of elites going behind closed doors and of citizens constructing dialogical spaces, the problem of plebiscitary rhetoric is sidestepped rather than confronted. The possibility of a national deliberation day notwithstanding, most citizens will not have the opportunity to participate in these venues.20 Even for those who do participate, it is not clear how much of the Socratic process will “stick”: there is of course hope that when participants emerge from the safe havens they will hang on to their well-reasoned and deliberated opinions in the face of a thoroughly plebiscite-oriented public sphere, but there is also room for doubt. Thus, in addition to avoidance strategies, deliberative democratic theory ought to confront plebiscitary rhetoric head-on. I have suggested that the first step in this process is making conceptual distinctions between the different ways that plebiscitary rhetoric and private reason can threaten deliberation. The second step, one that I have not taken in this chapter, is to deal with the mass public directly by developing a clear model of deliberative rhetoric that provides criteria

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by which we can criticize speeches, orators, and the media through which they communicate. Notes

















1 The term “public reason” is often used to signify John Rawls’s particular understanding of what is to count as a public reason. I use the term here loosely and leave open the question of what is or is not an acceptable public reason. 2 There is a broad range within contemporary debate when it comes to how strongly or weakly this mechanism is said to operate. At one end of the spectrum are theorists such as John Dryzek, Joshua Cohen, and Jon Elster, who argue in terms of individual psychology and cognitive dissonance: “There are certain arguments that simply cannot be stated publicly. In a political debate it is pragmatically impossible to argue that a given solution should be chosen just because it is good for oneself. By the very act of engaging in public debate – by arguing rather than bargaining – one has ruled out the possibility of invoking such reasons” (Elster 1997, 12). See also Cohen (1996) and Dryzek (2000, 46-47). Other theorists such as Amy Gutmann and Dennis Thompson or Seyla Benhabib admit that individuals sometimes use blatantly self-serving arguments in public, but as a general matter of political culture they are often difficult to sustain, especially when a fundamental moral issue or one of basic justice is in question. See Benhabib (1996) and Gutmann and Thompson (1996, 126-27). 3 On the question of abstraction from non-generalizable views, see Bohman (1999, 176-78). I use the Kantian term “private reason” rather than the Rawlsian term “non-public reason” because I want to argue that there are two separate types of non-public reason: private reason and plebiscitary reason. 4 There is, of course, much debate about how exactly to characterize the Socratic elenchus. Many people have argued that it is itself manipulative, using shame more than reason. At the moment, my use of the term “Socratic” is not intended to reflect a specific reading of Socrates; rather, it is to appeal to a popular idea of critical dialogue. For a defence of the Socratic elenchus, see Vlastos (1991). 5 Bruce Ackerman and James Fishkin have a similar diagram to try to illustrate the problem of achieving deliberative opinion within the mass public versus a select group. They do not, however, connect it to the public reason debate. See Ackerman and Fishkin (2003, 28). 6 A central theme of Habermas (1993) was the inverse relation between quality of deliberation and inclusiveness in the public sphere. Habermas has since moved away from this argument. For a discussion of his earlier position, see Calhoun (1993). 7 I discuss this possibility in more detail in Chambers (2004a). 8 See Ackerman and Fishkin (2004, 9-11) for a discussion of the relationship between modern polling and deliberative politics. For a useful treatment of the relationship between pandering and manipulation, see Jacobs and Shapiro (2000). An interesting question for deliberative theory is this: Where is the line between deliberative consultation and focus group polling? For one answer, see Fishkin in this volume. 9 Slavery was an issue bargained over between the major economic interests of the time. Citizens had little or no input into the process of constitution framing and were not even asked to choose delegates to Philadelphia. At the ratification stage, the low voter turnout for delegates to the state ratifying conventions was one possible indicator that citizens were not particularly engaged in the debate. See Ackerman (1998). For a stronger critique of the claim to speak for the people, see Beard (1986), Derrida (1986), and Tully (1994, 93-95). 10 I am thinking of Hume’s appeals to the circumstances of justice. 11 See the fourth section of this volume for further discussion of such forums. 12 For a discussion of how realistic face-to-face encounters are as a model of democracy, see Goodin (2003). 13 This is what appears to have happened in the Charlottetown referendum, and some theorists are arguing that it is what happened with the defeat of the European constitution in France and the Netherlands (Chambers 1998).

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14 South Africa did not have a referendum on its constitution, although earlier national elections gave popular endorsement to the constitutional process. South Africa is a special case, however. Western democracies are under increasing pressure to bring constitutional documents to the people for direct ratification. 15 Indeed, early stages of the process were dominated by plebiscitary reason accompanied by mob violence. 16 The logic of bargaining can also work the other way. A militant grassroots constituency uninterested in concessions can force its leaders behind closed doors if those leaders choose to pursue an accommodationist strategy. 17 As an empirical matter, it could well be that individuals appeal to public reason in private sessions. I am saying only that behind closed doors one of the main external inducements to appeal to public reason is absent. Some individuals may not need external inducements and use public reason because of a personal civic commitment, for example. 18 Robert Goodin (1992, 133) has a marvelous example of blatant log-rolling from the floor of the American Senate. 19 This is the logic behind Gutmann and Thompson’s (1996, 115) secrecy test. 20 Although I applaud the “utopian realism” of Ackerman and Fishkin (2004) in proposing that Americans take a day off every four years and deliberate in small groups at the annual cost of $15 billion, I do not suppose that this will happen in the near future. See also Chapter 10 in this volume.

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5 Is Democracy a Means to Global Justice? James Bohman

Democracy can be justified with any number of reasons. Many such justifications are intrinsic, related to realizing various moral ends and political ideals. The rights, forms of equality, and freedoms constitutive of the democratic ideal are substantively related to various ends of justice, including self-development and self-government. Yet, even beyond such constitutive relations to the ends of justice, democracy is also desirable as a means to many different ends, including problem solving, pooling information, revealing preferences, and so on, all of which may be contextually important as means to achieving aspects of justice. Historically, many reformers and social movements have placed their hopes in democracy as an instrument to promote social justice. Indeed, democracy has historically been a linchpin of change, in large part because the political status of persons as citizens has proved a robust basis for generalizing rights and making claims to justice.1 In many human rights documents, such as the Universal Declaration of the Rights of Man, democracy is often instrumentally justified as the best way to “foster the full realization of all human rights” (UNCHR 1999). Empirical evidence also suggests other instrumental relationships. One well-known correlation is between famine prevention and democratic entitlements, such as freedom of the press and association; another may be found in the democratic peace hypothesis, the empirical claim that democracies are less likely to go to war.2 These instrumental benefits may also be related to intrinsic features of democracy, especially to public deliberation. At least in the long term, then, there seems to be no denying that numerous innovations have made democracy more stable and increasingly able to achieve the ends of justice than its past realizations. At the same time, there is good evidence to cast doubt on Jane Addams’ adage that “the only cure for the ills of democracy is more democracy” (Addams 1902, 11-12). While endorsing this hopeful stance, John Dewey (1988, 325) immediately introduces a proviso: democracy can remedy its own ills only by becoming a democracy that is “genuinely different in kind.” Otherwise, democracy seems

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to face a vicious circularity: “For democracy to promote justice, it must already be just” (Young 2002, 35). Call this the “democratic circle.” Although it can never be said to disappear, the circle can become virtuous through the “democratic minimum,” the achievement of a normative status sufficient for citizens to exercise their creative powers to reshape democracy according to the demands of justice. The account that I offer here is deliberative since it depends on the relationship between deliberation, accountability, and the capacity of citizens to introduce novel demands and claims. Of course, the very idea of such a reform requires that justice is not an all-or-nothing affair but a matter of degree and that the same is true of democracy. The possibility of the gradual amelioration of injustice is indeed the main reason why democrats such as Dewey believe they can break the circle through democratic processes. In the same vein, many argue that the solution to the problems of democracy is to “deepen democracy,” to make it more inclusive of a greater number of agents and wider in terms of acceptable avenues of influence and modes of political inquiry.3 Deliberative democracy is one such proposal. Democracy is that set of institutions and procedures by which individuals are empowered as free and equal citizens to form and change the terms of their common life, including the nature and scope of democracy itself. In this sense, deliberative democracy is reflexive to the extent that it consists of procedures by which rules and practices are subject to the deliberation of citizens themselves. At the same time, deepening democracy through deliberation currently has its limits. By including more people in decision making, a democracy may better achieve justice for its own citizens, although this effect does not necessarily occur and certainly need not include those outside the polity. If this is so, then how can democracy become a means to global justice? By making the terms of democratic order subject to claims to justice, including the scope of citizenship itself, a properly instituted transnational deliberative democracy provides the basis for a solution to the problem of the democratic circle at the global level. My argument has three steps. First, I offer an account of the relationship between democracy and human rights that emphasizes the universal character of human political rights. Second, this understanding of rights as normative statuses and powers provides the conceptual basis for the specification of a “democratic minimum.” Several attempts have been made to work out such a conception, although they are either too weak or too strong to fill this role.4 The conception of the democratic minimum developed here is freedom from domination operationalized in a very specific sense. Employing Hannah Arendt’s conception of freedom as “the capacity to begin” (1976, 470), I contend that the form of nondomination sufficient for the democratic minimum is the capability to initiate deliberation and thus democratic decision-making processes. Third, I apply this conception to the political form of a transnational polity, in which

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citizens enjoy the democratic minimum as members of various demoi. In such a multilevel polity, there is always the possibility of democratic domination of one demos over others. Several examples will inform this discussion. On the negative side, the current legal powerlessness of American cities in relation to other demoi is instructive, as are international financial institutions. I argue that such domination is overcome as long as the capacity to initiate deliberation and political action is distributed among various units and various levels. On the positive side, the European Union provides grounds for hope. One consequence of this examination of the EU is that it shows how the democratic minimum can be used to make issues of borders endogenous to democracy and for that reason a matter of justice. Justice and the Democratic Minimum: Ideal and Non-Ideal Theory Before turning to the democratic minimum, in this section I develop a republican account of universal political rights to membership, such as the internationally recognized “right to nationality.” Such rights underwrite the claim that the political community has the obligation to correct certain forms of injustice. On this basis, a democracy that realizes human rights does not just endorse various universal entitlements, such as voting or political participation, but also makes it possible for citizens to exercise the creative dimension of citizenship, central to which is the capacity to initiate deliberation on democracy itself. In light of these rights, bearers of human rights become “self-authorizing sources of claims,” to use John Rawls’s term (Rawls 1996, 100). Usually, this means that political rights give bearers an equal share in collective self-determination. This interpretation, however, is overly particularistic and in tension with the openness of democratic institutions to all claims to justice. For this reason, rights against domination are more fundamental than rights to collective self-determination; furthermore, unlike self-determination, rights against domination include the authorization to make claims to justice that go beyond the normative framework of any particular set of institutions and roles. They include normative powers that may be exercised against domination as it emerges through the capacity of powerful institutions such as states to assign rights and impose duties. These powers are often taken to imply legal rights for states and immunities from state power for individuals as citizens. Why does the realization of human rights require democracy? It is only as a citizen within the normative framework of a democracy that this selfauthorization to initiate meaningful political activity is made actual. The capacity to make claims represents a minimum sense of self-governance that does not presuppose any particular conception of democracy but could be realized in a wide variety of possible practices and procedures. The fact that

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human rights require democracy (even in some minimal sense) has potentially troubling consequences for their realization. A circularity seems to ensue: human rights require democracy in order to be exercised, yet democracy requires human rights in order to be self-correcting and non-tyrannical and thus minimally just. Only under ideal conditions would democracy realize justice and rights. In non-ideal conditions, democracy might even promote the continued existence of unjust circumstances – as shown by the long history of the acceptance of slavery and then segregation in the United States – either instrumentally in failing to be a means to justice or constitutively in failing to embody sufficiently deep or extensive democratic norms in its institutions. It follows that democracy is related to justice in at least two different ways, and these complex relationships help give rise to the problem of the democratic circle. This circularity leads Rawls (2001a, 32) to distinguish between ideal and non-ideal theory, where non-ideal conditions are defined in terms of the likelihood of non-compliance with political norms. This distinction between ideal and non-ideal theory leads him to distinguish domains of applicability of the theory of justice: while people may meet the demands of ideal theory internally, international relations or relations among peoples are part of non-ideal theory in which the requirements of political justice must be weakened for the sake of toleration among peoples (Rawls 1999, 172; 2001a, 32).5 Understood in terms of the theory of democracy, the methodological distinction between ideal and non-ideal theory then simply assumes that the democratic circle cannot be broken when the circumstances of justice do not apply. However, not all non-ideal cases are the same. Some unjust democracies, for example the United States prior to the Civil War, can be made more just if they become a different kind of democracy. Since ideal conditions are by definition never empirically real, virtuous circles must always operate under non-ideal, but not entirely unjust, conditions. Tyranny provides the contrast class of entirely unjust conditions. Domination is possible without the total absence of justice in mixed circumstances in which institutions may provide conditions instrumental to justice for some but not all. Determining how such democratic circles become fruitful under less than just conditions is the problem of the democratic minimum. Once delineated more precisely, it can then be argued that the democratic minimum is not domain specific. This minimum or threshold may or may not be present in any particular transnational and international institutions, just as it may fail to be present within constitutional states. In republican terms, both international and domestic institutions may be dominators. The international democratic deficit is particularly apparent in the lack of transparency in many intergovernmental negotiations as well as in rules and frameworks that permit only more powerful stakeholders in most bargaining

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situations. The latter case is clearly evident in multi-unit polities. Whenever a variety of subunits is needed to make the polity well governed, the democratic minimum may be unevenly distributed within a complex polity, as the example of the legal status of US cities as corporations will show. The institutions that organize the polity in subunits with their own demoi may currently be unable to provide opportunities for the self-development needed if members are fully to make use of their rights of membership. In these cases, membership may not provide statuses, powers, or entitlements sufficient to break the democratic circle, so that they must then be acquired by other means or through other political relationships. The purpose of the conception of the democratic minimum is then to describe the necessary but not sufficient conditions for democratic arrangements to be a means to realize justice under appropriate non-ideal conditions. Even if these conditions are realized internally, a democracy will not necessarily be just in all its dealings. It may not be just, for example, in all domains in which citizens are obligated, and it may not be just in relation to those non-citizens affected by its decisions. To the extent that the minimum is a matter of degree, it can be specified along a number of dimensions and in a variety of procedures. But once this minimum is met, a democracy cannot become more just without becoming more democratic at the same time and vice versa. This is so, in the first instance, because certain features of democracy are constitutive of justice, in particular its notion of citizens as free and equal. Part of its egalitarian ideal is not simply that individuals are free from interference but also that they are free in the sense of possessing certain equal normative powers, namely, the powers to assign and modify duties and obligations. The issue is not one of increasing rationality as such. When citizens become less free with regard to their judgments or in considering the claims of others, their polity becomes less just and, for the same reason, less democratic. Judgments made in fear after traumatic events may make a polity less just and more prone to domination for the sake of security and, to this extent, less democratic. Just as it holds among units of a democratic polity, the minimum must for this reason have application across polities as well; one polity may undermine the democratic minimum of another by ignoring its normative status and powers as a demos. In doing so, it violates the human rights and standing of democratic citizens and acts as a dominator toward other demoi. Democracies that recognize the political rights of the citizens of other democracies and all the citizens of their own have obligations to assure a whole variety of minima. These minima would apply to various locations, modes, and avenues for the exercise of influence over decisions. Just as citizens within a polity may disagree with one another about whether or not they are violating the democratic minimum, so too may citizens of

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different polities. The issue in both cases is one of normative statuses and powers: it concerns whether or not someone has the normative power to make a claim about which others will genuinely deliberate. The only way the minimum will be met for all is if all decide together. If others have equal political rights as human rights, then the obligation to avoid domination applies equally to non-members as to members. Otherwise, non-members have no claim to justice or to the exercise of their normative powers. However, our obligations to members may well be more extensive even in this regard, particularly if we are involved with them in a web of social and political relationships that increase the intensity of domination. The democratic circle suggests that duties to non-citizens are thus distinct not in kind but in degree. The democratic minimum does not solely concern the distribution of minimally necessary normative powers to make it possible for citizens to influence the distributions of rights and duties. A democracy could promote justice by means other than statuses or powers, as when it develops more effective and better-informed ways of solving problems that have other­ wise been ignored. A democracy may also promote justice through the virtues of its cooperative modes of inquiry: in making available the full range of information, for example, or in the creativity and effectiveness of its collaborative problem solving. As a means to knowledge, democracy may promote justice outside formal institutions as associative and expressive freedoms spill over into a broader political domain over the long term. A democracy could also be effective in securing compliance to rules that promote beneficial consequences related to claims of justice or in developing citizens’ political capabilities in virtue of their participation with others. These instrumental benefits for justice need not necessarily occur, even under propitious circumstances. In light of the epistemic values promoted by democracy, a good case can be made that they are not merely contingent by-products but also the results of the reduction of bias through the availability of all relevant perspectives due to democracy’s normative commitments to cooperative deliberation and open discussion. These benefits may, in many cases, accrue only if institutions already meet the democratic minimum. Problems may be solved effectively only if they are on the agenda; cooperation and compliance are enhanced only if those affected are able to effectively participate or be heard. Here is an instance of a possible difference principle for non-domination: no increases in freedom overall (say by gains in institutional efficacy) that do not also decrease the extent and intensity of domination. Many international institutions fail to meet this standard and may increase domination by increasing their efficacy and efficiency. The obvious place to begin in developing the democratic minimum is in terms of the republican account of those human rights that contribute to

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having the status of a free citizen. Certainly, the absence of tyranny entailed by membership in humanity is a basic condition of any just polity. Nonetheless, the mere absence of tyranny does not reach the democratic threshold. Although the conditions necessary for non-tyranny are part of nondomination, it may well be the case that democracies in settler societies that continue to act in tyrannous ways toward Aboriginal peoples, for example, have not yet met all their obligations to realize human political rights. In the standard liberal view, this non-tyranny condition could be fulfilled by simple non-interference, thus making it a plausible political means to realize more justice. This argument opens a potentially vicious democratic circle in presupposing that the conditions of justice already hold. Non-tyranny is insufficient to establish the potential reflexivity about normative powers necessary for rectifying injustice. For example, even if protection against the worst injustices is secured by mechanisms of consultation in a Rawlsian well-ordered hierarchical society, the terms of justice and the framework for assigning normative powers are not thereby made part of the democratically open agenda. What is lacking? The answer is republican and concerns the relationship between non-domination and democratically achieved justice. The democratic minimum requires more of legitimate authority than that it grants the permission to be consulted or even that it allows citizens to respond to items on its agenda. Consider the republican contrast between citizen and slave. Unlike the slave, a citizen has the ability to begin deliberation; citizenship entails the ability not just to respond but also to set the items on an agenda. As Arendt (1976, 479) puts it, “Beginning, before it becomes a historical event, is the supreme human capacity; politically, it is identical with human freedom.” This capacity marks the specific democratic contrast between master and slave, even if the master is an enlightened, liberal-minded despot who permits a large measure of personal freedom.6 Whatever freedoms are granted to the slave, she remains dominated and thus lacks any intrinsic normative authority even over herself; at best, she may only respond to the initiatives of others. As opposed to the maximization of various liberties, the capacity to begin thus provides the basic measure for the normative status of persons required for the democratic minimum. It should also be noted that extreme destitution creates conditions that are functionally equivalent to tyranny and the absence of political rights.7 Consider two non-deliberative accounts of non-domination. Both Pettit’s account of tracking and Buchanan’s interpretation of accountability offer sparse views of the democratic minimum. Both might object that one does not have to be able to initiate deliberation to hold authority accountable. Following Pettit (1997, 88ff.), accountability demands only that officials and administrators “track” the “public good” of citizens, understood here in

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objectivist terms as something that officials can fail to track correctly for epistemic reasons. Since officials themselves determine what counts as epistemically good tracking, according to their own criteria of relevance and the acceptable range of interpretations of the public’s good, the absence of deliberation makes them potential dominators. A similar problem besets Buchanan’s (2004, 176-85) more modest reliance on the empirical fact that democracy protects human rights through the “right combination” of representative institutions; they are said to “most reliably achieve the accountability necessary for protecting basic human rights.” Whatever this right combination might be, the accountability offered by such institutions is coarse grained and post hoc; historically, they have not avoided the worst sort of abuses of racism and sexism without extra-institutional struggles. Accountability comes from citizens themselves; citizens, not officials, interpret the claims they make and the democratic standards of justification that support them. In cases of injustice, it is this dynamic and creative interaction between freedom of initiation and democratic accountability that makes it possible for citizens to break the democratic circle. Although representative institutions regularize already established capabilities to influence decisions, they often entrench the communicative power of particular portions of the public over others. Their role may be to facilitate complex deliberative interactions across levels and polities as well as to facilitate the flow of information across such institutions and the public. In such a system, office holders may also initiate and co-ordinate deliberation and decision making of various sorts, promoting not only the stability of the system but also its legitimacy. For my purposes here, such intermediary institutions would also promote the capabilities of citizens to communicate and deliberate across levels and sites as well as the overall openness of institutions to claims made by citizens across polities and demoi. To develop the virtues of this particular republican account, the democratic threshold of “freedom as the capacity to begin” can then be further operationalized (and thus made more specific) in two ways: first, in terms of the capacity of citizens to amend the basic normative framework – that is, the power to change how rights and duties are assigned; second, in terms of the capacity to get an item on an open agenda and thus initiate joint, public deliberation. The first problem is solved via constitutionalism in the broad sense of the term. The second demands a certain organization of the polity, with a differentiated structure of multiple levels and units. A political order meets the democratic minimum in the first case only if it is a reflexive order. Even so, a constitutional order provides the appropriate openness to revision and deliberation that makes it a fundamental requirement of democracy, whether with respect to governance or government. The power of

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amendment and adjustment alone is not sufficient for the democratic minimum; what is distinctive about a constitutional order is the use of political right to create the possibility of “reordering the order itself” (Sabel 1997, 159). As James Tully (2002, 217) points out, this reflexive capacity must go all the way down (even if not all at once): “If citizens are to be free, then the procedures by which they deliberate, the reasons they accept as public reasons and the practices of governance they are permitted to test by these democratic means must not be imposed from the outside but must themselves be open to deliberation and amendment.” Tully clearly has in mind the ways in which constitutions have to change to accommodate the claims to justice of Aboriginal peoples, who have been regarded historically as non-citizens. As I noted earlier, constitutions do not guarantee that citizens are the fully self-determining authors of all their obligations; such a capacity to initiate a challenge and reorder the legal order itself (including rights, duties, and boundaries) is a necessary condition for non-domination. A constitution gives citizens normative powers over normative powers, and political rights include the power to change the assignment of rights and duties. But this does not exhaust the democratic minimum. For those who have lost their right to have rights, the international political community is the last addressee of deliberative appeals to justice; in this case, widening of the democratic minimum and thus of citizenship status is required for deepening democracy. The Democratic Circle Revisited: Control, Domination, and the Demoi Problem In established democracies, such widening and deepening of membership to include more rights and more citizens are necessary for a constant process of renewal and self-correction and thus for reflexivity about both ends and means. This is because democracy has a particular dual structure among institutions as both a means to justice and a realization of some of its constitutive ends. There are other problems of institutional design in established democracies, to the extent that such institutions have over time promoted and entrenched conditions of ever-increasing pluralism, complexity, and interdependence. Under these circumstances, it may also be the case that some members, qua citizens in one or more units, have lost the full range of their constituent power to initiate deliberation. It is widely recognized that democratic states may dominate one another in some particular respect, as is the case in various international financial institutions with weighted voting indexed to contribution, but political domination is also common within states as a consequence of centralization. Call this the “demoi problem,” that of domination across the units of the same democracy and across different democratic polities. It emerges wherever there are multiple units necessary for good governance, yet a unitary institutional design persists

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that is still guided by the principle that democracy is popular sovereignty, control by a singular demos. For example, it is not clear just how popular sovereignty is supposed to settle conflicts across units, as when citizens qua members are denied the power to solve problems because they are also citizens of larger units such as state or federal institutions. But federalism may be organized to promote justice, as when powers and capabilities of self-rule are entrenched at multiple levels at once. Federalism in the case of cities is hierarchical; in the case of the EU, it is non-hierarchical. In the one case, the powers that one has at the higher level defeat citizen powers at lower levels; in the non-hierarchical case, these powers are mutually reinforcing, as when human rights in the EU can be claimed both against the member state and the EU as a whole, thus expanding citizens’ powers to initiate juridical appeals through multiple levels. Already in the eighteenth century, federalist thinkers formulated the political basis for an alternative, transnational understanding of the right to membership in a multi-unit polity.8 As opposed to the unitary sovereignty of the people in either its Lockean or its Rousseauian version, there is an alternative democratic tradition that recognizes the importance not only of a plurality of democratic forms but also of the necessity of transnational institutions to overcome the effects of modern colonialism. Indeed, many thinkers have used republican ideas to argue for a kind of transnational federalism as the alternative to colonial resurgence of the antiquated political institutions of empire. For many republicans (including Diderot, Price, and Turgot, among others), federalism had the dispersion of power necessary to overcome the domination of colonies by the centre.9 When contrasted with the clearly centralized power of early colonial empires and the singularity of monarchical sovereignty, the plural federalist polity had great appeal. As the term “federalism” is used now, it may denote too strong an emphasis on centralization. Certainly, this is the connotation it has in current debates about the EU. In historical experiences of federalism, it might be best to call such a polity a “democracy of demoi” that disperses sovereignty so as to realize the value of non-domination of all citizens. But with the emergence of imperium abroad, dominium within the state inevitably reasserted itself as the metropolitan centre sought to control the colonial periphery by escalating its authority and coercive power. As a result, anti-colonial republicans argued that the imperial form of European globalization undermined republican checks on sovereign power. They concluded that the extension of republican institutions beyond the state was the only solution. From Diderot to Kant to Madison, a transnational federation in which citizens’ powers and statuses are robust at all levels is the solution to the European imperium. Consider first how even federalism alone does not solve the problem of domination without providing for a democratic minimum for citizens in

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each unit. Republican federalists saw non-hierarchical forms of organization as necessary for achieving a transnational democratic minimum, yet they failed to consider whether non-unitary federalist polities have the potential for the same sort of domination that they rightly rejected for singular entities with centralized organization of political power. Even in a plural polity, some entities may lack the democratic minimum, and their demoi may in turn be dominated by other demoi (when the members of some subunit are taken to be demoi with regard to self-government). This domination may also occur even among independent demoi. If an uneven distribution of non-domination favours one state over another, its increased capacity may lead to the further domination of others in cases of political competition (say between India and Pakistan). Other units may undermine the distribution of the democratic minimum to the extent that their borders entail the capacity to command non-interference and thus prohibit political influence across borders. Instead, a democratic relationship among units requires porous boundaries and procedurally open jurisdiction if they are to remain democratic and just. Take the example of the legal entitlements of cities to rule themselves within the institutions of American federalism. It shows that merely having multiple units is not enough unless they stand in democratically just relationships to each other. According to Gerald Frug (1999, Chapter 6), the development of the “legal definition” of cities as private corporations that came to define their entitlements and powers has made them increasingly powerless with respect to states. As a result, their democratic arrangements deprive them of the means to change many unjust circumstances. In most democracies, cities emerged historically as relatively autonomous and selfgoverning entities; over time, however, their powers were reduced in the general trend to eliminate all local forms of protectionism and intermediate levels of association and institutions for the sake of state control. Giving cities the same legal status as private corporations completed the process. This definition is reflected in cities’ primary powers, all of which are related to property: the power to tax, zone, and incorporate. With this definition of the legal basis of their powers, cities became corporations that were politically subordinated to states, sometimes granted authority and home rule for “purely local” concerns. The result was that, in the highly urbanized polity that emerged in the twentieth century, the American legal system created cities as private corporations powerless to act on their own initiative and thus dominated precisely with respect to the freedom to begin. This historical scenario is evidence of a remarkable failure of democracy across units in an otherwise well-ordered polity. Considered as a unit of democracy, “a city is the only collective body in America that cannot do something simply because it decides to do it” (Frug 1999, 5). In this respect, cities as units have the normative powers of a democratic entity only at the

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permission of others, specifically if state governments authorize them to act. They thus depend on the permission of the state to act, not on the general democratic authority of its members. Residents of cities therefore lack two features of full political rights: not only the capability to initiate with respect to those matters that affect them as city dwellers but also the capacity to follow through in making decisions with others who possess a similar political authority. One solution has been to bypass the current institutional structure and create horizontal alliances and partnerships among territorially dispersed metropoles to increase democratic capacity. In this sense, the system of distribution of political authority fails to achieve the conditions for non-domination and thus falls below the democratic minimum as the problems of cities mount and create conditions of injustice. This condition is made worse by conditions of interdependence with suburbs in a city’s region whose decisions need not take account of the externalities and consequences to the city, especially with regard to the distribution of resources, such as funding for public schools decided on the basis of property values in various locales. This distribution of a fundamental public good allows city units to be subjected to the will of market actors such as developers, who must be enticed to create housing units or office spaces that might raise property values generally. What is the solution to this problem of domination? Perhaps it is simply a matter of granting cities the missing normative power so that they can pursue political autonomy. However, if the problem is the relationship between units, then this solution is partial at best. Something more like transnational democracy may also be required so that the previously independent and dominating units now must function together as a metropolitan or regional polity. This latter form of democracy begins to address the more fundamental difficulty: Why does one demos have the authority to dominate other demoi in the first place? Deeper issues of boundaries, jurisdiction, and sovereignty in multi-unit democracies need to be addressed. Besides falling short of the minimum needed to break the vicious circle of injustice for some units, a potential regress sets in for plural polities that seek also to be democratic in each unit. One might create a demos that is the unity of those demoi, say the demoi of the city and the state in the form of a region, but that region is one regional demos among others, each with its own relations of interdependence and externality at the level of any particular decision. The potential regress of demoi then has no non-arbitrary, democratic stopping point. Instead of searching for an optimal and thus authentic sovereign demos, we will do better to democratically organize the relations among the demoi. Otherwise, once we grant multiple demoi, each one would inevitably fall short of democratic criteria to the extent that the citizens of such a federation “do not exercise final control over their agenda” (Dahl 1983, 95). Understood relationally, each unit must have, in Dahl’s terms, “a quasi-open

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agenda” in which citizens have multiple possibilities for placing items on the agendas of other units via their memberships. How might this work? The robust realization of various powers and statuses has made the member states in the EU more rather than less democratic because the realization is neither functionally specific nor hierarchical. For example, the existence of EU-level courts has broadly impacted the legal recognition of the rights of immigrants by giving them the normative power to appeal directly to the European Human Rights Court. Indeed, the European Convention on Human Rights already entitles foreigners without nationality in any EU member state to appeal to the European Human Rights Court and the EU Court of Justice for the ongoing juridical recognition of their rights, creating adjudicative institutions that build on the constitutional traditions of member states, even as they are extended to non-citizens.10 In addition to the normative powers contained in the legal status of EU citizenship, the multiplication of institutions whose task it is to preserve the conditions of non-domination makes such powers and statuses more robust. EU-level institutions can thus serve to make these states more democratic.11 The extension of human rights in the EU even to non-citizens shows the advantages of realizing human rights in differentiated institutions, even as these powers are a source of further reactive contestation. In the case of human rights in the EU, their realization at multiple levels enhances the power of citizens to initiate deliberation by giving each institution a quasiopen agenda. The European Union also provides examples of how to institutionalize a deliberative process non-hierarchically as a solution to the problem of multiple units. Here too the transnational character of the deliberation is mutually enhancing in ways not available to hierarchical political institutions typical of modern states. Deliberative opportunities can be distributed differently in the absence of non-unitary institutions. As Charles Sabel (Dorf and Sabel 1998, 292) has argued, a “directly deliberative” design incorporates epistemic innovations and increased capabilities of economic organizations, in the same way that the regulatory institutions of the New Deal followed the innovative patterns of industrial organization in the centralized mass production that they attempted to administer and regulate. Roughly, this kind of organization uses nested and collaborative forms of decision making based on highly dispersed collaborative processes of jointly defining problems and setting goals – an approach already typical in many large firms with dispersed sites of production. One such process is found in the use of the Open Method of Co-Ordination (OMC) for many different policies (e.g., unemployment or poverty reduction) within the EU and is best described as “a decentralized specification of standards, disciplined by systematic comparison” (Sabel and Cohen 1998, 366).12 In this process, citizens in

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France, Greece, and elsewhere deliberate as publics about policies simultaneously with EU citizens at different locations. The features of the deliberative process promoted by the OMC are quite different from simple delegation. First, the decisions so produced do not take the form of a uniform policy that governs all. Nonetheless, the OMC promotes a great deal of interaction both within EU organizations and across sites and locations, so that solutions to problems generated by other deliberators can provide alternatives or be used as premises for the deliberations of others. Second, a shared normative framework established by initial goals and benchmarks structures the deliberation in each site and at each level, and the process of their application requires new deliberations at various levels of scale. At all levels, citizens can introduce concerns and issues based on local knowledge of problems, even as they are informed by the diverse solutions and outcomes of other planning and design bodies. This sort of distributive process concerns the deliberative division of labour, which takes advantage of the diverse circumstances and competences of various groups. Thus, although these publics are highly dispersed and distributed, various levels of deliberation permit public testing and correction, even if they do not hierarchically override decisions at lower levels. The role of hierarchy here is to apply agreed on standards, often requiring lower units to begin their deliberative processes over again when they fail to consider important alternatives. There is a second and perhaps deeper difficulty that makes this regress unstoppable: it is not resolved by insisting that each demos must have ultimate control over its agenda; rather, it has to do with how many democratic procedures assume that boundaries are simply given. Borders of all kinds, including jurisdictional ones, are then exogenous to democratic criteria, and thus conflicts over borders have no democratic resolution. As Dahl (1983, 103) puts it, “The criteria of the democratic process presuppose the rightfulness of the unit itself.” If we appeal to an independent standard such as human rights to resolve the issue of borders, then borders become entirely contingent on past circumstances of injustice rather than promoting the democratic minimum.13 For example, secession may indeed, according to this standard, make the boundaries more just, but it does not necessarily make the polity a better means to justice. According to the democratic criterion I have developed here, it must do both, and that is most likely in cases where contests for sovereignty are not all-or-nothing affairs that can lead to reproducing new injustices and democratic domination. The reference to such a criterion makes judgments less dependent on large-scale and unavoidably indeterminate consequentialist arguments about producing the greatest overall justice in the long term. The point is rather to promote justice through the democratic minimum. In the next section, I argue that the regress of demoi gives us good reason to think that a transnational

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democracy, a democracy across borders, is the best way to promote human political rights and the democratic minimum. Democracy, Domination, and the Rule of Law My argument to this point has been republican. I have emphasized not only that domination is not solved by democratic states but also that a transnational democratic order is necessary if democracy is not to be undermined at home by domination abroad, often under the guise of security. Given the current set of arrangements, then, we would expect that the democratic circle remains self-defeating at home, and vicious in the international arena, given the lack of citizen deliberation in this latter arena. But as the examples in the previous section have shown, we have at least one feasible transnational polity in existence – the EU, with its dispersed and overlapping forms of deliberation. Could the distribution of universal political rights as a kind of universal citizenship create the conditions for the democratic minimum across borders? In the EU, the problem of democratic domination is not solved directly by appeal to the rule of law, understood as the best way to resolve the problem of the arbitrary use of political and legal power. The problem is endogenous to its novel yet incomplete political form. It is the problem of “juridification” – that is, the effective use of law as an integrating and regulatory instrument for market integration. Under these conditions, constitutionalism has a different objective than the elimination of tyranny: that is, domination as subordination to the arbitrary will of an individual or group. Its objective is to eliminate legal domination, the use of law to impose a cooperative scheme on others without their ability to influence its terms. Democracy is the solution to the problem of juridification precisely because it permits the authorization and amendment of a cooperative scheme from within. Legal domination is distinct from tyranny also in the sense that it is not global; it may be specific to some particular area of authority that is immune to democratic influence. Although not unique to the particular political form of the EU, such domination cannot be overcome by simply creating representative legislative institutions. Juridification denotes the tendency toward increasing expansion of law and law-like methods of formal rules and adjudication to new domains of social life. As Habermas (1988, 356ff.) argues, the use of law in this context has the consequence that many social relations and informally regulated domains of social life become “formally organized,” with the consequence that they are increasingly opened up to the state and the market. As a longterm trend in modern societies, juridification has taken place until recently by means of the territorial state. More and more areas of economic life and transaction are being “juridified” in various ways. With the emergence of institutions that regulate global trade and capital such as the WTO, NAFTA,

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and certain aspects of the EU, juridification has now become a global phenomenon. Certainly, the EU is advanced in the replacement of state forms of juridification given that an ever larger portion of legal policy in the EU derives from community directives and intergovernmental proceedings (Habermas 2001b, 5-6). This supranational form of juridification is based on the doctrines of direct effect and the legal supremacy of EU law over national law; other regulatory institutions such as the WTO have the same effect of creating a system of obligations for individuals, states, and corporations, all the while imposing a scheme of global economic co-operation that bypasses the democratic mechanisms of the representative constitutional state (Tully 2001a, 5ff.; see also Bohman 1996, Chapter 4). As a corrective to this process, republicans thought of the rule of law as an essential condition for non-domination: a just government is the “rule of law and not men,” so that any just political community aims at “freedom by the laws, and not freedom from the law” (Pettit 1997). Given the familiar constraints of publicity, non-retrospectivity, and generality, the rule of law at best promotes justice in the sense of Rawls’s “justice as regularity” (Rawls 1971, 56-58). As Rawls, Hart, and others have pointed out, justice as regularity is consistent with “great iniquity” and may even regularize forms of domination. The practical effects of democracy are not directly tied to more effective administrative institutions or even to the consistent application of the formal rule of law, both of which democracy may achieve. As Sen (1986, 165-66) notes, there are limits to legality: “Other relevant factors, for example market forces, can be seen as operating through a system of legal relations (in which ownership is understood in rights, contractual obligations, legal exchanges, etc.). In many cases, the law stands between food availability and food entitlement. Starvation deaths can reflect legality with a vengeance.” In this sense, the presence of famine must also be explained politically via the operation of social norms conjoined with lack of effective social freedom of citizens with regard to their content. The deplorable treatment of Native populations in famines caused by colonial administrators is often due to domination, manifested in their lack of substantive freedoms such as free expression or political participation. Thus, the rule of law, if it is to be deliberative, must be understood in a more political than formal sense. Tied to the right to have rights or the basic status of membership, this republican understanding of the rule of law must be sufficient to establish the democratic minimum. Contrary to Hart and Rawls, it must provide the basis for avoiding great iniquities but must be constitutive of civic freedom. As Bellamy (2001, 29) puts it, citizenship so conceived “operates as ‘the right to have right’ and not as a pre-given set of rights” removed from the political process. But what sort of status is the right to have rights? We can approach this question through a key republican passage in the Metaphysics of Morals. Kant (1996, section 6.3) argues that a just political

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order is based on a universal “right to right” that applies to all persons. The turn to cosmopolitanism comes as an answer to the question of whose freedom is important in creating a just legal order. The only answer is “all persons,” so that everyone has a second-order right or, as Höffe (2002, 121) put it, “the right to be reckoned with in this legal capacity and to integration in the community of persons living in a legal form.” It is thus a universal right to legal standing or membership, a “right to have rights” in Arendt’s terms (Arendt 1976, 176). Without this status, Kant (1996, 241) argues, human beings would be persons without personality, “beings who have only duties and no rights,” and thus “slaves or serfs” and dominated by others who have the power to assign those duties, or rightless persons who are the victims of severe political violence. Thus, we can avoid the great evil of domination only if citizenship status makes it possible for us not simply to have duties imposed on us and thus to be free in the sense of having rights and claims to resist the imposition of duties. Rather, it is the distinctly normative power to change the circumstances and terms of political life, as long as others have the same status and powers. It is this capability that enables citizens to avoid the great ills of modern political life. We can understand human rights as fundamentally concerned with basic freedoms, including rights against tyranny and domination. These basic freedoms are justified negatively and positively as necessary conditions for avoiding great harms such as domination and destitution on the one hand and for living a worthwhile human life (“well-being freedom” in Sen’s [1995] terms) on the other. Membership status of this sort, understood as the right to have rights, is thus the most basic of the basic human freedoms. For an initial clarification of this idea, I can do no better than quote from the Universal Declaration of Human Rights: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized” (UN General Assembly 1948, Article 28). Such a social and international order is one in which the basic status that enables anyone to make claims to right and justice is realized and effective. Thus, the empire of law is not simply the rule by law but also a form of rule in which this fundamental status and basic freedom is robustly realized for individuals. What would it mean to transnationally institute such a rule of law? The EU once again provides a good starting point. Solving the problem of legal domination or juridification in the EU requires more than simply giving the European Parliament (EP) more powers, since this constitutional act will not suddenly constitute a demos or unitary public sphere. A more differentiated structure of institutions and procedures is needed if the EU is to democratically solve the problem of legal domination. In this respect, the EP could play a much greater role than it currently does but only with regard to specific powers related to reflexively implementing a new and non-hierarchical

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transnational framework. I have already mentioned two possible features of such a system: overlapping institutional arrangements that protect and realize the status of citizenship, and the use of directly deliberative institutions that would give citizens multiple opportunities to exercise their civic freedoms at various levels. Thus, as in the case of the domination of cities, the goal is democracy across demoi at various levels of aggregation that make the power to initiate deliberation more robust. Finally, and perhaps most importantly, interlocking levels and sites for deliberation can become a system of checks and balances (Pogge 1992). Such checks and balances are perhaps the most important institutional advantage of multilevel democratic systems. Such systems permit access to influence from a variety of organized publics. Moreover, the structural differentiation of a transnational polity would fulfill both the liberal protective function for human rights and the deliberative function in maintaining the democratic minimum across the polity as a whole. Such a robust right to have rights would then enable citizens to avoid the great evils of modern social life that result from political domination and the absence of civic freedom. Thus, with regard to the effective exercise of the normative powers and rights needed to resist domination, we should prefer a dense network of social relationships and overlapping and interlocking institutions that cut across various porous borders. Because many current borders do not promote justice, it is hard to see how justice can be democratically achieved. Breaking such a vicious circle requires not a borderless world but realization of the democratic minimum across democratic polities. Such polities would then be better equipped to democratically deal with complex and volatile issues of global justice, including issues of global warming, extreme poverty and destitution, and new forms of political violence. It might be objected that such a constitutive conception of the rule of law is too strong to be realized beyond the context of bounded political communities. However, most constitutional democracies already have this republican feature in that they permit changes not only in the laws but also in the constitutional order itself. This reflexivity not only manifests the possession of the legal status of a free citizen but also defines the active capabilities and powers that make citizens constitutively free. Besides problems with this non-normative definition of domination that make it difficult to see the constitutive character of the rule of law, contemporary republicanism lacks the idea of shared liberty as the basis for both deliberative democracy and freedom from domination. Without this kind of liberty, citizens can dominate non-citizens and thus be insecure in their own non-domination. Republics need to heed Seneca’s cosmopolitan injunction never to dominate others if they themselves are to honour their constitutive commitments to nondomination as a shared freedom.

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Conclusion: Realizing Transnational Democracy The world we live in is now more complex and interdependent if still highly uneven with regard to the distribution of resources. For the past two centuries, from the chartist movement for universal suffrage forward, democracy has been seen as a means to achieve more justice. Under current conditions, it can do so only if it is organized transnationally, as a democracy of many demoi that crosses the borders between them and organizes inquiry and deliberation into the conditions for ongoing cooperation and collaborative problem solving. If we ask ourselves whether democratically organized societies are likely to become more rather than less interdependent, more rather than less pluralistic and complex, it is clear that democracy entrenches such conditions even as they exert pressure on its institutions and require that they be transformed. These very conditions that cut across borders can promote injustice and even turn a virtuous democratic circle into a vicious one. In that case, citizens and publics must be able to transform their democracies not only for the sake of justice but also so that their institutions remain democratic. Two empirical trends suggest that transnational democracy is already a realistic extension of current political possibilities. The first is the existence of transnational public spheres and civil society. Such public spheres are particularly important for creating conditions of communication that enable the exercise of public influence across diverse and dispersed institutional structures. The second is the emergence of new institutions with great but as yet unrealized democratic potential, primarily in the EU and in international regimes. Taken together, these developments suggest that there are two primary agents for a possible transnational democratization. Democratic states comprise the first agent of transformation; they pool their sovereignty and pursue broadly federal and regional projects of political integration. The EU exhibits how this possibility may develop beyond initial intentions and become a project of polity building. The second agent is less institutional: it consists of the participants in transnational public spheres and associations, the citizens who inhabit networks of communication and interaction. When both agents of transformation are able to coalesce under the right circumstances, innovative practices of “polyarchical” and multilevel deliberation emerge, which in turn may self-consciously create new publics. With the consistent application of the republican conceptions of freedom as non-domination, the right to have rights and the rule of law become inherently cosmopolitan and not merely contingently so. Given the many international forms of political authority today that are potential and actual sources of domination, the republican project must be able to extend the rule of law to the global level so that it too can be reflexively organized in terms of the right to rights. Indeed, in a world of extensive social, economic,

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and political interaction across borders, citizens may come to be dominated by distant others with whom they are not in a legal community, even as they are still dominators to others by virtue of imposing duties on them and limiting the exercise of their normative powers. Because domination and non-domination are not all-or-nothing properties in such a situation, the best way to attain a just global legal and political order is not in a unitary set of institutions, nor is it best conceived of as a consequence of the functional differentiation of institutional labour. Rather, there must be a set of overlapping and intersecting institutions, each with its own right to rights, with its own distinctive powers and capabilities. Such an institutionally differentiated cosmopolitanism continues the strand of republican theory that has seen all political communities as transnational, pluralistic, and complex and yet, for that very reason, better able to attain the instrumental benefits of non-domination and create the institutional space for civic freedom. Given that the central condition for non-domination is the democratic minimum, understood as the capacity to initiate deliberation, realizing deliberative democracy is a means to global justice.





Notes 1 For a historical account of the development of the different “generations” of rights from individual liberties to political rights to social rights, see Marshall (1950). 2 On the first, see Sen (1986); on the second, see, among others, Doyle (1983a and 1983b). 3 See Young (2002, Chapter 1). For a range of accounts that see deepening democracy in terms of new forms of participation, see Fung and Wright (2003). 4 For Buchanan and Pettit, the democratic minimum (or its conceptual equivalent) is tied to the accountability of authority or the “tracking” of public interests. On tracking, see Pettit (1997, 88). On accountability understood as a democratic minimum for protecting human rights, see Buchanan (2004, 146). These democratic criteria are too weak and could be fulfilled even in the presence of domination and in the absence of the ability to initiate claims in deliberation. 5 On non-ideal theory and the issue of non-compliance, see Rawls (1999, 5). 6 See Berlin (1969, 129): Just as a democracy may, in fact, deprive the individual citizen of a great many liberties which he might have in some other form of society, so it is perfectly conceivable that a liberal-minded despot would allow his subjects a large measure of personal freedom. The despot who leaves his subjects a wide area of liberty may be unjust, or encourage the wildest inequalities, care little for order, or virtue, or knowledge; but provided he does not curb their liberty, or at least curbs it less than may other regimes, he meets with Mill’s specification [of liberty].

Notice that democracy need not be judged just because it would equalize or maximize all forms of liberty. Political equality developed in terms of non-domination is a threshold concept; the threshold would not be met when some have so many more political capabilities and resources than others so as not to require cooperation with all citizens. 7 Besides Sen’s (1986) work on capability failure, see Thomas Pogge’s (2002) treatment of extreme destitution as the violation of human rights. 8 See Pagden (1995, 190ff.). For republican federalists, “the creation of stable international relations and of successful commercial networks – both now regarded as prime moral objectives of government – could only ever be the product of political liberty” (190).

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9 As Pagden put it in Lords of All the World, “the Enlightenment was, perhaps more than has been recognized, the product of a world which was ridding itself of its first, but by no means, alas, its last imperial legacy” (1995, 200). 10 Joseph Weiler (1998, 719) points to the case of Gayusuz v. Austria that went to the European Court of Human Rights and led to the extension of social security benefits to third-country nationals. 11 On the democratizing role of the EU with respect to human rights, see Bowman (2006). On the rights of immigrants to political participation in the EU on republican grounds, see Honohan (2002). 12 For a more direct application to the EU, see Cohen and Sabel (2004, 366-85). My description of the OMC as a deliberative procedure owes much to their account. 13 Such a historical approach is defended by Buchanan (2004, Chapter 5); this argument could be further developed with a different account of the democratic minimum, but as it stands it only partially fulfills the necessary conditions for making a multi-unit polity democratic enough to be a means to justice.



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Part 3 Deliberative Democracy and Indigenous Peoples

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6 Deliberative Democracy and the Politics of Reconciliation Duncan Ivison

The problem of historical injustice presents a deep challenge to the aspirations of deliberative democrats, especially to those “deliberative activists” who seek to advance deliberation in deeply unjust circumstances (Fung 2005, 399). But the debate over historical injustice can itself benefit from taking a “democratic turn.” Much of the literature is dominated by arguments over historical entitlement theories of justice, or by a legalistic focus on the possibilities for compensation and reparation.1 That much of it is deeply skeptical as well is no surprise given that focus. But what is striking about actual debates over historical injustice in the world today is their intensely political character, and this aspect needs to be theorized much more explicitly when thinking about the nature and consequences of historical injustice. One crucial aspect of political disagreement, as opposed to moral disagreement, is that it is not just the force of good reasons at issue but also the application of force itself, especially by the state. The conclusion of a political deliberation does not necessarily indicate that the other side is wrong, only that it has lost (Williams 2005, 13, 77-79). Many countries are struggling with the legacies of past injustice at the same time as they are undergoing democratization. This aspect has been well discussed in a number of places, including in the literature on “transitional justice,” in which countries emerging from authoritarian rule and/ or civil war struggle with the legacy of gross injustice as they design new institutions and try to forge new social and political norms (Hayner 2001; Elster 2004; Kutz 2004). But the problem of historical injustice also haunts well-established liberal democratic societies, as in the case of the legacy of slavery in the United States or the situation of indigenous peoples in North and South America and Australasia. Do the resources of deliberative democratic theory offer a distinctive approach to these challenges? What does the problem of historical injustice reveal about the nature of deliberative democracy?

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I want to look at these questions by considering the history of a reconciliation process that took place in Australia between 1991 and 2001. This process was a response to important political and legal developments in relation to indigenous peoples’ land rights, among other issues. It was officially inaugurated by a specific act of Parliament, but its roots lie in social and political activism that preceded it, and it spilled over into much wider discourses and activities in the broader civil society. Although the official legislative process finished inconclusively, the language of reconciliation remains a way to articulate aspirations for relations between indigenous communities and the state as well as between indigenous and non-indigenous peoples more generally. After the election of a new government in 2008, Prime Minister Kevin Rudd’s first parliamentary speech was to make an “Apology to Australia’s Indigenous Peoples” and appeal to the idea of reconciliation as a “core value of our nation” (Rudd 2008, 2). Similar steps have been taken in Canada.2 Reconciliation is often linked to the idea of forgiveness, to the idea of a “cancellation of enmity” or estrangement by the perpetrators and beneficiaries of past injustice who acknowledge their collective responsibility for wrongdoing (Bhargava 2000, 60). It is also linked to the idea of restoring social harmony through forgiveness. However, I do not think forgiveness is an appropriate or achievable goal for a state to seek from the victims of historical injustice or their descendants. And whatever the vision of social harmony, it cannot be premised on the acceptance of a comprehensive moral ideal. Democratic pluralism entails deep disagreement over what an appropriate moral conception of social harmony would entail. Instead, democratic reconciliation should aim at promoting the conditions in which the legacy of historical injustice is not allowed to distort the capacities of present and future generations to lead decent lives. Much has recently been written about truth and reconciliation commissions and their role in promoting a peaceful transition to democratic selfgovernment (e.g., Hayner 2001; Rotberg and Thompson 2000). But the Australian case is different since it is not a case of transitional justice per se. It allows us to test some of the claims deliberative democrats often make with regard to how we should address deep structural injustices. It offers a glimpse of a “mature” liberal democracy struggling to make sense of a past and what, if anything, justice demands in light of it. As Judith Shklar (1990) points out, it is often more fruitful to start with injustice as opposed to ideal justice when trying to make sense of what liberal justice actually entails. In this chapter, I begin with historical injustice as a way of thinking about what deliberative democracy might actually entail. In much of the recent work on responsibility for past injustice, emphasis is placed on the importance of what Thomas McCarthy calls the “politics of memory” (2002). Given the difficulties of establishing liability for past injustices in the present, the idea is to shift to more collective and diffuse

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conceptions of responsibility and especially to the language of civic or political responsibility. In fact, many argue that the language of liability in general, and a focus on reparations in particular, is misplaced. The worry is that it is too difficult and divisive to establish meaningful responsibility for past injustices and too reactive and backward looking (Elster 2004; Waldron 2002b). Part of the problem is the difficulty of undoing the kinds of harms that are at issue: How do you undo the effects of slavery, colonialism, racism, or genocide? Although there have been impressive attempts to justify reparations, and indeed extensive schemes of reparation have been established in various countries (see Posner and Vermeule 2003), many political and legal theorists remain skeptical. But alongside and intertwined in these debates are the discourses of restorative justice and reconciliation. Here the idea is that addressing historical injustice is less a matter of retribution or reparation and more a matter of promoting other valuable ends, such as non-humiliation, autonomy, freedom as “non-domination,” civic harmony, or democracy. Without taking a position on the ultimate justifiability of reparations, I focus here on the idea of political reconciliation as a form of the politics of memory and on its relation to deliberative democracy. Democracy and Justice Liberals should seek distributive outcomes that are just, which entails (very generally) an equal distribution of resources or capabilities such that individuals are able to live decent lives and effectively contest those relations of power that act on their most important interests. But liberals should also be concerned with the context within which patterns of distribution operate, that is, with the deeper structural features and relations of power – social, economic, cultural, historical, political – that shape and suffuse those patterns. Social and political relations can never be free of relations of power but should aim to be non-dominating.3 One way of bringing these two concerns together is to argue for democratic justice: that justice and democracy, although distinct, are mutually implicating. There are differences between legitimacy, a procedural concept, and justice, a substantive concept, but they are porous. The notion of democratic legitimacy must then be spelled out. There are obviously thicker and thinner ways of doing so. I will offer only the most basic account here: an outcome or distribution is legitimate if and only if it can receive the informed assent of (or be justifiable to) all those whose basic interests are significantly affected by the law, rule, or institution in question. Or, to put it in a slightly different way, that all those affected by the law or policy have had a chance to contest the proposal, to ensure that “their politically avowable, perceived interests are not just ignored and flouted” but treated equally in the course of collective decision making (Pettit 1999, 178-79). But this ideal raises still more questions. What constitutes “informed assent,” “justifiability,” or an

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appropriate level of contestation? Where should we look for such assent or contestation (in legislatures, courts, civil society)? It also raises the spectre of circularity and a variation on Rousseau’s (1968) paradox: for a democracy to promote justice, it must already be just. Deliberative democracy is often thought to provide a way of making sense of this paradox. I will assume that there is some connection between justice and democracy. They aren’t equivalent, but they are closely related (Dowding, Goodin, and Pateman 2005). Democratic societies can be deeply unjust, and the presence of democratic arrangements is not sufficient for just outcomes. Game theorists studying legislatures have taught us that collective decision making in public institutions often generates perverse and arbitrary results. “Empirical” theorists of democracy, in general, have sowed deep skepticism about its capacity to promote the outcomes sought by liberals committed to social justice.4 But equally, it would be wrong to infer that democracy and justice are therefore fundamentally contradictory. Democratic intuitions play an important role in most contemporary theories of justice as well as in our everyday intuitions about justice. Democratic commitments are prefigured in our convictions about liberal justice in a number of ways. First, a commitment to equality – to the equal worth of persons or to the Kantian idea of treating someone always as an end and never as a means – lends support (albeit inconclusively) to the justification of democratic institutions. To deny people the right to participate in the shaping of those laws and rules that affect their most important interests would be to treat them unequally, no matter how benign the nondemocratic authority exercised over them. Second, a commitment to the equal distribution of basic liberties supports democratic arrangements insofar as, on just about any account of being free (whether “negative,” “positive,” “republican,” or otherwise), the absence of the opportunity to influence the laws and policies that affect your most important interests would constitute a dire threat to your freedom.5 Third, even if we were confident about what justice is, it doesn’t follow that it should be imposed. For one thing, we could be wrong. Moreover, it might well be hard to conclusively show to others that they were wrong about their conception of justice given something like “reasonable disagreement” about the good and the right (Rawls 1996). Theorists of justice appeal to democratic arguments here because they need a story about the legitimacy of the institutional arrangements that follow from their arguments. In fact, it is precisely because the nature of justice is unsettled that democracy is inexorably tied to our thinking about it in various ways. Since disagreement, not consensus, is an inescapable feature of arriving at the just ordering of any domain of human interaction, democratic considerations are crucial to our thinking about justice (Shapiro and Hacker-Cordon 1999; Williams 2002;

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Young 2002). The indeterminacy of justice, in other words, pushes us in democratic directions. Appealing to local meanings alone about various practices and goods to discern rules of justice risks entrenching what are for some, at least, relations of domination (see Walzer 1983). On the other hand, attempting to specify the abstract conditions under which uncoerced agreement can be achieved on principles of justice risks delivering either too little or too much. Too little is gained if the conditions remain so abstract that realizing them in anything approaching real-world conditions is hopeless. Too much is gained if the conditions are so strong that any form of democratic discussion about them is rendered moot. Historical Injustice and Democratic Deliberation There is a range of arguments purporting to show in what sense we can be held responsible for the past (see Ivison 2002; Thompson 2002; and Waldron 2002b). When we turn to claims made by indigenous peoples for various kinds of collective rights, for example, historical injustice arguments loom large. They aren’t the only way of justifying these rights, but they are an important element of any such justification. One general argument goes something like this: 1 2 3 4 5

liberal legitimacy depends on being subject to authority for which adequate reasons can be provided; indigenous societies were previously self-governing; indigenous peoples were denied the right to self-government for bad (i.e., unjustifiable) reasons; many of the disadvantages that indigenous peoples currently suffer from are related to dispossession and lack of self-government; therefore, indigenous peoples have a justifiable claim to the return of (some of) their territories and to exercise their rights to self-government, consistent with the equal rights of others.

I am not going to assess the ultimate validity of these arguments but will consider a related problem: even if we agree that historical injustices can and should be addressed in some way (almost no one thinks that the past simply doesn’t matter), what is the most democratic way of handling disagreements over historical injustice? Theorists committed to democratic justice will say something like this: the more inclusive the democratic process, the more likely its outcomes will be legitimate, and hopefully the more likely they will be just. Is this plausible in the case of disagreements over the causes and consequences of historical injustice? At the heart of many civil wars and social conflicts today lie deep disagreements about the past, especially grievances about perceived past injustices.

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It may be true that, strictly speaking, the past is causally out of our reach. But in another sense, the past’s grip on the present can persist and shape beliefs and actions. How should the past be represented in public deliberations about justice? Deliberative democrats have sought to decentre deliberation in thinking about how spatially dispersed individuals can engage in mutual deliberation. Something similar may be required in relation to subjects who are, in a sense, temporally dispersed (see Bohman 1998, 2006). As a way into this problem, consider two general approaches to the problem of reconciling the claims of cultural or national groups with liberal justice. Call the first the “a priori” approach. Here the idea is that we identify certain basic liberal rights and procedures in advance of any deliberations, and independent of any possible special relations that we may have as members of a shared practice or cooperative scheme, and then work our way out toward accommodating the claims of non-liberal groups. So Aboriginal self-government may be permissible but only insofar as it is compatible with the prior commitment to a basic core of liberal rights. A second approach is the “democratic deliberative” approach. Here the idea is that whatever is to count as our “core” commitments in terms of basic rights, or the most appropriate distribution of burdens and benefits in our society, must emerge from the actual – but still considered – deliberations of the members of that society. These rights or principles can’t be stated in advance, deduced from ideal speech situations or thought experiments, or intuited (and then imposed) from between the lines of our most revered texts.6 Thus, public decisions ought to be responsive to the diverse views on the right and the good held by citizens, and citizens ought to be able – both directly and indirectly – to enter into public discussions and have their views taken seriously over decisions on matters that affect their most important interests. Moreover, citizens are assumed to be motivated (at least in part) to seek public agreement and to be willing to offer reasons others could accept or at least not reasonably reject. Some deliberative democrats go further and suggest that a central purpose of deliberative democracy is, in fact, to resolve moral disagreement, or at least to “economize” it, since “mere toleration” locks into place moral divisions and makes moral progress difficult (Gutmann and Thompson 1996, 62-63). Both of these approaches are committed to the discipline of public reason. The a priori approach relies on pre-commitment to structure the nature of public reason. So, for example, in his liberal counterblast against multiculturalism, Brian Barry argues that to appeal to cultural identity in arguments over distributive justice is, in many cases, to “[cease] to engage in moral discourse” and therefore isn’t a legitimate move in the language game of public reason (2001, 253). A deliberative approach, on the other hand, eschews pre-commitment and allows for more room and thus less constraint for deliberation to work. In fact, the background constraint consists of the

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value of democracy, which is meant to generate a more open and inclusive view of public reason. There are two arguments here, one epistemic, the other normative. First, we should see inclusive public reason as a resource for democratic deliberation, not as a hindrance, because it contributes to the epistemic conditions required for collective decision making in complex, multicultural societies (Young 2002, 81-120). Public discussion that is more inclusive of broader forms of social experience has a better chance of getting the “right” answer to complex social problems. Second, the interpretation of basic political norms is fair game for contestation because of a commitment to everyone being given equal standing and having their particular reasons taken seriously. If substantive principles of justice have to be worked out deliberatively, then the norms governing deliberation itself have to be worked out deliberatively as well. Thus, Barry’s charge that claims about identity are illegitimate modes of public reason depends on an assumption that there are no plausible arguments available to link identity-related differences to interests that might be relevant to a liberal theory of justice. But how can we know this until we actually engage with the claims being made and the interests being appealed to? The claims aren’t self-justifying, to be sure, but nor are they presumptively false. A commitment to deliberative democracy should cut against the idea that we can determine a priori which kinds of reasons count as genuinely public reasons in advance of actual deliberations.7 One way to summarize these different emphases is this: first, public decisions ought to respond only to reasonable views about public action, where a view is considered reasonable in light of its substantive content; second, public decisions ought to respond to reasoned or deliberated views, where those views are said to emerge from a well-ordered deliberative process. Deliberative democrats often assume that these two approaches converge (Ferejohn 2000, 77-78), that a specific set of substantively reasonable views will emerge from well-ordered deliberative procedures. For example, Amy Gutmann and Dennis Thompson (1996), despite defending what they call “deliberative democracy,” in fact impose very stringent ex ante constraints of “reciprocity,” “publicity,” and “accountability” on public deliberation – so much so that they are able to provide detailed and substantive answers to hard questions of public policy currently being debated in American politics. (In my schema, this looks like an a priori argument masquerading as a deliberative one.) Designing Institutions to Deliberate about the Past A society struggling to confront the legacy of historical injustice presents a serious challenge to the defenders of deliberative democracy. It combines the presence of asymmetrical relations of power with the lack of an effective framework for genuinely democratic decision making. One set of challenges

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involves the kinds of preconditions and precommitments that deliberative democracy requires and whether or not historical injustice creates any special problems in establishing these conditions. Another set of challenges concerns how deliberative democracy can be institutionalized, given how the legacy of historical injustice shapes existing institutions. I will use a case study from Australia to discuss some aspects of these complicated issues. Before doing so, let me say a bit more about deliberative democracy and historical injustice. Why would deliberative democracy be an attractive ideal in these contexts as opposed to what I call the a priori approach? Consider two general arguments. First, deliberative democracy provides a more consistent approach to the problem of legitimacy, at least from the perspective of a minority group scarred by historical injustice. If the basic norms and institutions of society have to be justified to everyone according to a wide conception of public reason, then the fact of historical injustice can be made to feature in those deliberations and be given an opportunity to shape their outcome and introduce new kinds of reasons into that space. It is not clear that defining what constitutes the appropriate object and/or idiom of public reason in advance of the actual deliberations would allow this to happen if, for example, identity-related differences or the legitimacy of basic institutions were off the table. Also, the more aggregative and majoritarian the democratic procedures, the less likely that minority groups will have their concerns taken seriously and that public attitudes and beliefs about their concerns might be changed through ongoing public deliberation. At the least, deliberative democracy encourages the achievement of a modicum of mutual intelligibility between citizens by encouraging them to present their best reasons for proposing or contesting the norm, practice, or rule at issue. Of course, intelligibility should not be confused with sociability; understanding a claim doesn’t mean that you are more likely to accept it. But it is a necessary (not sufficient) step along the way to mutual acceptability. Now, for some deliberative democrats, this means that we should allow citizens to appeal to their deeply held beliefs and comprehensive (and notso-comprehensive) views – to the complex reality of their concrete, lived existence, as it were – in the process of attempting to find common ground with others. This can be a valuable exercise for a group that has been oppressed or dominated or whose way of life has been suppressed or denied as a result of majority decision making. The idea here is that the parties to a disagreement have to be clear at least about the point of the preferences or beliefs that each holds if any meaningful and effective terms of mutual accommodation are to be found (Weinstock 2001). Thus, deliberative democracy is proposed as offering a more satisfactory solution to the problems

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faced by minorities in liberal democracies and establishing the legitimacy of liberal institutions in contexts of deep moral pluralism and disagreement. Second, it might be that a deliberative approach provides a greater opportunity for a cultural group that has been the victim of historical injustice to adapt to contemporary circumstances and institutions in their own way. Simply imposing liberal norms in these contexts might compound the injustices they claim to suffer. At the same time, if we value democratic deliberation between groups and the state, then we must also care about it happening within groups. So are we justified in imposing democratic norms on such a group? The democratic approach would, at the least, force elders or elites within groups to pay attention to the views of others and hopefully provide more vulnerable members with tools for making themselves heard (and, if necessary, various kinds of exit points if disadvantage became entrenched). The democratic approach would hopefully emphasize the importance of ongoing dialogue, negotiation, and compromise both within and between groups. But depending on what we mean by democracy, it might not entail a wholesale rejection of various social and cultural norms that are at odds with principles of liberal equality. Thus, the more “democratic” a deliberative democrat you are, the more accommodating you will be (in principle, at least) of these differences and departures from liberal equality, albeit always subject to the test of the ability of those affected to contest the validity of those norms. The more liberal and less democratic, the less comfortable you are in tolerating these imperfect accommodations (except for purely prudential reasons). Deliberative democrats are often unclear about how deliberative democracy can be institutionalized, yet their arguments often depend on “institutional experimentation and redesign” (e.g., Benhabib 2002, 184-85). However, one institutional innovation that has emerged in relation to historical injustice is establishing a formal method for engaging with that legacy, for example by establishing a truth commission or reconciliation process. There are two general arguments for doing so. First, establishing such a process allows for conflicting views about the past to be aired and debated, and thus at least to be acknowledged and faced up to, even if ultimate resolution seems remote. Second, in divided societies, such a process helps promote conditions in which various kinds of “deep compromises” (Richardson 2002b, 146) can be established, compromises required to underwrite effective democratic deliberation. If nothing else, these processes can provide an institutional mechanism for managing dissensus – for institutionalizing contestation over the past. Deliberative democrats have been interested in these ideas. Gutmann and Thompson (2000), for example, have applied the arguments from Democracy and Disagreement (their 1996 book) to the issues surrounding establishment of the South

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African Truth and Reconciliation Commission (TRC). I want to look briefly at their arguments before turning to my example from Australia. For Gutmann and Thompson, the moral justification of the TRC rests on democratic grounds, namely, that it can contribute to the democratization of society by promoting an “economy of moral disagreement” about the past – that is, justifying political positions by seeking a rationale that minimizes rejection of the positions that you oppose (1996, 57; 2000, 38). Doing so encourages finding common ground where it exists and mutual respect where it does not.8 The TRC can do this as long as it is guided by the principle of “reciprocity,” the idea that citizens should try to justify their political views to each other on grounds that others could accept and treat with respect those who make good-faith efforts to engage in this process of mutual justification even when disagreement persists. Reciprocity also presupposes that socioeconomic conditions exist such that adult citizens can genuinely engage with one another on equal terms. In fact, where these conditions are absent, Gutmann and Thompson suggest that it is reasonable to use non-deliberative means to bring them about (1996, 57, 134-36; 2000, 36). Thus, the justification of the TRC has to be a moral justification, not merely a prudential or instrumental one, to meet the legitimate concerns of those victims of apartheid who reject any trade-off between criminal justice and the end of reconciliation. The reasons offered have to be inclusive and thus can’t depend on a comprehensive moral vision of the good. Nor should the aim of the TRC be justified in terms of producing a conclusive judgment about the ultimate meaning or truth of the past. And finally, the principle of reciprocity should be embodied in the procedures of the commission itself. For example, appointments should be open to public scrutiny, hearings should be held in public (where possible), the arguments and viewpoints of all who appear before it should be taken seriously, and disagreement over its procedures and findings should be openly admitted rather than papered over. Now, the Australian reconciliation process is significantly different from the South African one in many ways. First, it doesn’t involve the establishment of a truth commission, although there were “truth-seeking” aspects to its remit. Second, the Australian context is not, strictly speaking, a case of transitional justice, especially in the sense that South Africa was. Although it may well have been founded unjustly (most states fall into that category), Australia has embedded in its public life a set of broadly legitimate rules of basic procedural justice and fairness enforceable by the state, its agencies, and the legal system as a whole. It also has a relatively well-developed and robust civil society. However, from the perspective of its indigenous peoples, at least as I understand their arguments, many of these background rules and norms have been shaped and distorted by historical injustice. At various times, they have been used to deny them equal treatment or to coercively assimilate them into mainstream society and deny them their political rights.

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And although formal discrimination gradually waned in the second half of the twentieth century, other forms of discrimination persist, along with disagreements over land claims, self-government, and continuing social and economic disadvantage. So deliberative democracy (and, more precisely, democratic deliberation) is valuable here to the extent that it embraces a wide conception of public reason that is sensitive to historical circumstances and to the way in which arguments are conceived of as reasonable or not in relation to the marginal status of the group making them (Williams 2000). Thus, it may provide an attractive way to justify the moral and political benefits of a truth commission or reconciliation process, as a way to institutionalize more democratically deliberative forms of politics. But it also faces a number of problems. The first problem is the persistence of “post-deliberative” disagreement. The second problem, especially in contexts concerning indigenous peoples, is the persistence of what I call “the legitimacy problem” – that is, the contested legitimacy of the institutions and practices used to enforce deliberative norms and to aggregate post-deliberative collective decisions. This problem is exacerbated in contexts where perceptions about historical injustice shape attitudes and beliefs about the basic structure of society, in the Rawlsian sense of the term. Case Study: Reconciliation in Australia I turn now to my case study.9 One of the distinctive features of the settlement of Australia, compared with that of Canada, the United States, or New Zealand, is that there were almost no treaties struck between indigenous peoples and the Crown. However, Australia shares the common-law background against which the jurisprudence of Aboriginal rights has emerged in Canada and elsewhere in the common-law world. Hence, the lack of treaties is not significant in terms of the kinds of rights that Aboriginal people might be said to possess. The real difference lies in the way that these “inherent rights” have (or have not) been recognized and institutionalized. And here the absence of treaties or constitutional recognition, and of ongoing processes of “nation-to-nation” negotiations in general, is significant. In the nineteenth century, as settlements expanded and the colonies became increasingly self-governing (Australia was federated in 1901) – and thus the scale of dispossession increased – indigenous people were increasingly marked out both legally and socially for discriminatory treatment. From the 1840s until well into the 1960s, legislation excluded Aboriginal people from a whole range of social and citizenship rights, including, of course, from their land but also from the franchise (extended fully only in the mid-1960s) as well as from access to a wide range of basic welfare benefits (e.g., equal pay). Assumptions about the cultural inferiority of indigenous social orders and their apparent imminent demise also led to state-sponsored

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programs that removed “half-caste” and other indigenous children from their families in order to “save” them from their apparently marginal position within Aboriginal society and to assimilate them into white society. Although the protection of children’s well-being may have warranted removal in particular cases, the scale and rationale of the removals indicate that they were mainly informed by an intention to hasten the demise of what was seen to be – in light of the racially infused conception of British Australian national identity – a culturally distinct and inferior indigenous population. Beginning in the 1950s and 1960s, many of the most egregious exclusionary provisions began to be removed (although not all: child-removal policies persisted into the 1970s) as the result of an unstable combination of civil rights activism and more explicitly assimilationist government policies. “Equal citizenship rights” thus had a double-edged connotation in Australia for indigenous peoples. On the one hand, they led to the removal of the worst forms of overt racial discrimination from the statute books; on the other, they were intended as part of a broader policy of cultural and political assimilation. Moreover, having citizenship rights didn’t necessarily mean benefiting from them given deep-seated racial attitudes and behaviours in the wider society. And even gaining access to welfare rights had painful consequences as the transition to a cash economy introduced new forms of dependency on Commonwealth benefits that disrupted the traditional subsistence economies of many remote communities – often with devastating results (see Pearson 2001). Also lacking in the Australian context, unlike elsewhere, were any constitutional rules or norms that provided leverage for indigenous peoples in their negotiations with the state. An important by-product of the activism of the 1960s was a referendum (in 1967) amending two exclusionary references to Aboriginal people in the Commonwealth constitution (1901). The actual amendments were relatively minor (the first to clarify federal powers to legislate in the interests of Aborigines, the second to include them in the census), but the campaign around the referendum – which was passed overwhelmingly – and the subsequent (rather mythical) social meaning of the 1967 vote brought Aboriginal issues into the mainstream of Australian political debate. It also brought an expectation of progressive change, led by the Commonwealth government. The momentum of the 1960s carried over into the next two decades in the form of increasing demands for land rights and improving the social and economic circumstances of indigenous peoples (see Attwood and Markus 1999). Important petitions demanding comprehensive land rights were presented in 1963 (the Yirrkala Petition) and again in 1988 (the Barunga Statement). The first major land rights case of the modern era was in 1971 (Milirrpum and Others v. Nabalco and the Commonwealth of Australia), and,

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although it denied that Aboriginal people had any common-law Native title, the outcry surrounding that decision generated enormous political pressure for change. The Labour Party’s election in 1972, led by Gough Whitlam, brought with it an explicit policy of “self-determination” for Aboriginal and Torres Strait Islander affairs and set the stage for a new era of policy making. A royal commission resulted in the landmark Aboriginal Land Rights (Northern Territory) Act of 1976, implemented even after the Whitlam government was dismissed and lost the subsequent election. A new government department was created, and many Aboriginal welfare services, until then handled (unevenly) by the states, were centralized under Commonwealth control. When the Labour Party came to power again in the early 1980s, it promised national land rights legislation, but this never eventuated. Labour did create the Aboriginal and Torres Strait Islander Commission (ATSIC) in 1990, which was meant to take over the administrative functions of the Department of Aboriginal Affairs, guided by elected representatives from indigenous communities. However, ATSIC never gained real traction with its intended constituencies or the government and was ultimately abolished by John Howard’s government in the late 1990s. There were various attempts to launch a campaign for a treaty during this era, including the establishment of an Aboriginal Tent Embassy in 1972 (which has continued in various forms until today), the establishment of an “Aboriginal Provisional Government,” a campaign by the National Aboriginal Conference in 1979, and the important Barunga Statement in 1988.10 A parliamentary committee was charged to look at the whole issue in 1981, but its final report in 1983 – Two Hundred Years Later – identified changing societal attitudes as more important than pursuing a treaty. Out of the ashes of these campaigns came the establishment of a Council for Aboriginal Reconciliation (CAR) in 1991 and a ten-year plan to create a bipartisan approach to Aboriginal affairs.11 The twenty-five members of the council were to be split evenly between indigenous and non-indigenous members, and its work was to focus on reconciliation and nation building, with recommendations toward that end to be made in time for the celebration of the centenary of federation in 2001.12 This process was given an enormous charge by the High Court’s Mabo decision in 1992, which explicitly acknowledged, for the first time in Australian history, the common-law rights of indigenous people to their land. There could be no escaping dealing with these issues now. In late 1993, the Keating Labour government passed the Native Title Act (NTA), which recognized common-law Native title, set up a Native Title Tribunal to mediate future claims, established a land fund to help purchase lands for those unable to make claims (due to the restrictive criteria set out in Mabo and then in the NTA) and foreshadowed a broad “social justice” package (which never

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arrived). In 1995, the Keating government also established a “National Inquiry” into the policy of removing indigenous children from their families, with a view to (among other things) “examine the principles relevant to determining the justification for compensation for persons of communities affected by such separation” (Terms of Reference [c]). The final report, entitled Bringing Them Home, was tabled in 1997 and suggested that an apology was due for Aboriginal children forcibly removed from their families. But with the election of John Howard and his Liberal government in 1996, following a highly divisive and often racialized campaign, the momentum in indigenous policy shifted in another direction. The new government began amending the NTA in order to constrain Native title and especially the right and duty to negotiate over land claims. This change was encouraged by another important land rights case in 1996 (Wik People v. Queensland ), which Howard and others suggested had swung the pendulum too far in favour of indigenous peoples’ land claims. He also explicitly sought to distance the reconciliation process from land rights and self-determination, and he cut the budget of the CAR by almost 25 percent. At the Australian Reconciliation Convention in 1997, meant to be one of the key public consultation events in the reconciliation program, Howard claimed that reconciliation would not work if one of its central purposes became the establishment of different systems of accountability and lawful conduct among the Australians on the basis of their race or any other factor (Grattan 2000). Moreover, the reconciliation process must focus on the future, he argued, and it must presuppose an overriding and unifying commitment to Australian institutions. So, instead of a focus on past injustices, it should be on “practical reconciliation,” not the “politics of symbolism,” and on measures that will improve the daily lives of indigenous people, wherever they live (Grattan 2000). The atmosphere was further charged when the National Inquiry into the child-removal policies – Bringing Them Home – was published in 1997 and Howard explicitly refused to offer a national apology on behalf of the Australian government for those policies or consider any form of compensation. The push for an apology then became tied to the final stages of the work of the CAR. In its Declaration toward Reconciliation, the council included a form of apology, but once again Howard rejected it. In August 1999, he sponsored a parliamentary motion of “sincere regret,” but it generated even more acrimony due to the perception that it avoided most of the main issues at stake. At the ceremony (or corroboree) to mark the end of the official reconciliation period in May 2000, Howard was heckled during his speech, and many in the audience stood and turned their backs on him. The final recommendations of the council included calling for a new constitutional preamble that acknowledged indigenous peoples as “first peoples” and called

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for Commonwealth legislation that would begin a process leading to an “agreement or treaty, through which unresolved issues of reconciliation [could] be resolved” (Council for Aboriginal Reconciliation 2000).13 Howard pointedly disagreed with this recommendation, again arguing that “practical” reconciliation was more important than the symbolism of treaties and apologies. This wasn’t surprising, since he had earlier stated (in 1988, while opposition leader) that it was an “absurd proposition” that a nation should make a treaty with its own citizens. Howard’s government was easily reelected in 2001. Although indigenous Australians appeared generally to support some kind of formal reconciliation process, there were disagreements about the details. Some suggested that it needed to be made clear with whom any treaty or agreement would be made (national groups, local groups, regional groups?) and whether it suited the interests of urban indigenous people or those in different parts of the country. Many suggested that the focus on reconciliation was distraction from hard questions about restitution and sovereignty – a way for whites to assuage their guilt without really having to do anything. Others suggested that the focus on reconciliation was entirely misplaced given the terrible social and economic circumstances of most indigenous people. Noel Pearson, a prominent Aboriginal lawyer and leader from Cape York, called the demand for treaties and reconciliation a confused “quasiradicalism” in the face of social and economic dysfunction. For Pearson, the real issues were the consequences of passive welfare and drug and alcohol abuse, which had led to staggering rates of violence and ill health in indigenous communities all over Australia. As he put it, “An apology at this stage of our national indigenous policy failure would only hide the present lack of insight and ideas among the Australian progressivist and liberalist middle class ... It would be like a coat of seventies purple plastic paint on a house full of white ants” (2001). Colonialism may have predisposed indigenous people to these afflictions, he argued, but it cannot explain why they continue to get worse. So, at the end of the ten-year reconciliation process, the results were mixed. No “deep compromise” emerged, nor did a clear plan for one. A half-hearted attempt at introducing a new constitutional preamble recognizing the special place of indigenous peoples in Australia was bungled and never campaigned for by the government. However, perhaps the deepest and most long-lasting consequences were the many local reconciliation committees and support groups that sprang up through the process and that helped generate a sense of commitment toward reconciliation outside the mainstream political parties. Groups such as Australians for Reconciliation and Native Title emerged, along with a host of other local, state, and regional networks, which helped keep the discourse

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of reconciliation alive in the background of the public culture. These groups fed, in part, off the hugely successful “bridge walks” in support of reconciliation held in the winter of 2000, which brought hundreds of thousands of people to the streets in the major capital cities of Australia. A quasi-public body formed in the aftermath of the official reconciliation process – Reconciliation Australia – has also worked to support these local initiatives. Nevertheless, indigenous people continue to suffer from appalling social and economic disadvantage, a fact that many commentators have seized on as proof of the failure of the language of “self-determination” and “Aboriginal rights.” Others have drawn precisely the opposite conclusion: just because genuine self-determination and respect for Aboriginal rights has never been adequately provided for, it can hardly be said to have failed (Behrendt 2003). However, even some Aboriginal leaders – especially Pearson – have increasingly questioned the self-determination agenda, worrying that it has come at the expense of rebuilding social and personal responsibility and of reconstructing Aboriginal social orders destroyed by passive welfare and drug and alcohol abuse. Pearson’s critique of passive welfare and the so-called rights agenda, however, has also included unstinting support for Native title property rights. Debate over reconciliation became paralyzed by disputes over the “practical” versus the “symbolic” forms that it might take. The Howard government insisted that apologies and symbolic gestures of reconciliation mattered less than addressing social and economic disadvantage on the ground. Despite this focus on the practical, things on the ground continued to get worse. However, in a remarkable development, the Howard government launched, in June 2007, an extensive “emergency intervention” in indigenous communities in the Northern Territory. Once again, child protection was the justification and the need to address the rampant violence, sexual abuse, and devastating drug and alcohol addiction that were ravaging many communities.14 The “intervention,” as it came to be known, set off an intense debate among indigenous and non-indigenous commentators and, although heavily criticized, received strong support, including from many indigenous leaders. At the same time, Howard announced that, if re-elected, he would press for an amendment to the preamble of the Australian constitution – what he called a “new Statement of Reconciliation” – that would “formally recognize the special status of Aboriginal and Torres Strait Islanders as the first peoples of our nation” (2007). He admitted that he had been slow to appreciate the importance of such gestures, although he made it clear that he continued to reject the call for any collective national apology for past injustice and that “individual rights and national sovereignty prevail over group rights” (2007). It was clear that Howard was attempting, on the eve of an election campaign, to address a broader public culture that had become

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increasingly receptive to these ideas, despite his consistent repudiation of them. The reconciliation process in both its formal and its informal aspects had clearly contributed to these developments. The opposition leader at the time, Kevin Rudd, had promised to work with indigenous communities to come up with an appropriate form of apology and had pledged to address the shocking gap in health and well-being between indigenous and nonindigenous communities. Rudd and Labour were elected, and in his first speech to the new sitting of Parliament in February 2008 Rudd moved a special motion of apology to the “stolen generations,” which included this statement: To the Stolen Generations, I say the following: as Prime Minister of Australia, I am sorry. On behalf of the Government of Australia, I am sorry. On behalf of the Parliament of Australia, I am sorry. And I offer you this apology without qualification. We apologise for the hurt, the pain and suffering we, the parliament, have caused you by the laws that previous parliaments have enacted. We apologise for the indignity, the degradation and the humiliation these laws embodied. We offer this apology to the mothers, the fathers, the brothers, the sisters, the families and the communities whose lives were ripped apart by the actions of successive governments under successive parliaments. In making this apology, I would also like to speak personally to the members of the Stolen Generation and their families: to those here today, so many of you; to those listening across the nation – from Yuendumu, in the central west of the Northern Territory, to Yabara, in North Queensland, and to Pitjantjatjara in South Australia.

Rudd also offered to establish a bipartisan “war cabinet” on indigenous policy, chaired by himself and the leader of the opposition, as a means of overcoming entrenched disadvantage and perceived policy stasis. However, the debate over the continuation of the “intervention” quickly stalled the spirit of bipartisanship, as the Opposition made it a price of their participation that the intervention be retained in the form in which they had introduced it while in government. Many aspects of the intervention are alarming, even if some of the concerns that motivate it are widely shared and equally alarming. Some urgent measures were clearly needed to protect children from increasing sexual predation and violence (more police, urgent medical screening, restrictions on alcohol, etc.). But other measures seemed less relevant to addressing those particular issues and hinted at broader reform of Aboriginal public policy. The statute authorizing the intervention suspended the application of the Racial Discrimination Act to its measures, which included (in addition to those mentioned above) the compulsory acquisition of Aboriginal lands for the purpose of granting leases; suspending the permit system that controls

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access to Aboriginal lands; quarantining social security payments; and abolishing community welfare programs that were often the only source of employment in remote communities. The invocation of the language of “emergency” in relation to the situation of indigenous peoples is striking; most of the problems outlined in the justification of the legislation have been amply documented over many years. Declaring an emergency suspends the normal operation of the rule of law and grants enormous discretionary power to the executive. Although it has been justified on the grounds of restoring (somewhat paradoxically) the rule of law to these communities – or at least some semblance of social order – what it also does is short-circuit the need for consultation and any genuine attempt to justify the relevant measures to the persons most affected by them. Conclusion What can we learn from this case study? What are the advantages and disadvantages of deliberative democracy for thinking about how best to manage and potentially resolve disagreements about historical injustice? It seems clear that formal, non-electoral processes of acknowledging and investigating the legacy of historical injustice can contribute to establishing more just and legitimate relations between indigenous peoples and the state. Formal processes promote an exchange of views about the past and a process for evaluating the consequences of those views. They create an alternative deliberative space within which disagreements about the past can be worked out. Yet a robust and active civil sphere provides an important domain for these kinds of discussions too. We need both. So a formal reconciliation process can contribute to the conditions in which the inclusive promise of deliberative democracy can begin to be realized in deeply imperfect circumstances. This also contributes to the process of rebuilding trust between different groups in a society shaped by historical injustice. However, my case study also points to limitations and challenges. Even when good deliberative norms are in place, they won’t automatically produce good outcomes. Moreover, the legitimacy of the reconciliation process depends on the parties accepting the terms of reference and the institutions on which that process depends. Thus, the origins of the formal rules governing the institution matter; the informal norms shaping deliberation matter (i.e., those that govern how people actually behave in deliberating, deciding, interpreting, and criticizing each other within these institutions); and the overall distribution of social and economic power matters. To be more specific, I’d like to suggest four tentative hypotheses that emerge from my example. 1

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The legitimacy problem infects any search for “reconciliation.” If the selfgoverning powers of indigenous peoples are inherent and coexist with,

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as opposed to deriving from, the sovereignty of the state, then the terms on which reconciliation is to be pursued, and indeed what constitutes “reconciliation,” matter crucially. Another way to frame this hypothesis is that political disagreement matters as much as moral disagreement, and the former is not reducible to the latter. Sometimes this manifests itself as a clash about ends but just as often about means. Indigenous peoples and the state may share similar ends, but the legitimacy of the institutions or processes meant to bring them about may be deeply contested. And legitimacy is a moral and political idea shaped by strategic interaction. Formal reconciliation processes can run afoul of this kind of disagreement. For example, by the end of the official reconciliation process in Australia, there were at least two distinct views about the aims of “reconciliation.” According to the first, the differences between indigenous and other Australians should be removed since the relevant aspects of those differences – such as discrimination and persistent social and economic disadvantage – undermine equal citizenship and the sense of a common destiny. According to the second, reconciliation should involve removing disadvantage but in part through the enactment of difference, both as a way of recognizing the distinctive place of indigenous peoples in the diverse public culture of Australia and as a means of realizing equality. Reconciliation processes can help create deliberative forums that bring to the surface and vent these disagreements, and that can be a valuable function, but it won’t necessarily resolve them, and the emotions they generate can persist and complicate democratic processes. To put it another way, political reconciliation is best conceived of as a specific form of structured national conversation or argument, not a defined terminus. Disagreement about the whole point of “reconciliation” has been a consistent feature of the Australian experience. But there are also costs in conceiving of reconciliation in this way. Open-ended processes for dealing with historical injustice can sap cooperative energies and engender resentment when they come to seem for some like so much wallowing in the past rather than addressing its consequences. This perception in turn can erode the conditions required for citizens to be willing to engage in the kinds of reflection and deliberation that a reconciliation process requires. 2

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Relations of power suffuse deliberation. This is a familiar point but well worth reiterating. Deliberative norms that promote moral as opposed to instrumental or strategic deliberation do not thereby insulate those deliberations from relations of power (broadly construed). Reason and force are not mutually exclusive. This fact doesn’t undermine the role of deliberation in politics, but it means that there is no easy distinction between “moral” argument and “political” argument, if the distinction

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is meant to imply that the giving of reasons is to be distinguished from the exercise of power. 3

Procedural preconditions should be contestable. Deliberation should aim to provide room for the parties to arrive at suitable democratic norms to govern deliberations in light of the historical and practical circumstances they face. Given the ambiguous legacy of indigenous peoples’ relationship to the state and to liberal citizenship rights, an openness to negotiation over these norms is crucial to establishing trust in processes meant to address historical injustice. Imposing strong ex ante conditions to do with reciprocity, accountability, and publicity, for example, risks undermining that openness. A more overtly political and negotiated approach to deliberative norms is required. Expanding the scope of democratic contestation creates opportunities for different voices to be heard – including, importantly, within minority cultural groups themselves – while at the same time making agreement more difficult and therefore bargaining and compromise more likely. There are risks, as always. The more unstructured deliberation is, the greater the possibility that more powerful parties can take advantage of it. Imperfect proceduralism is preferable to pure or perfect proceduralism, but contestability still matters. This challenge raises a deep issue about just how democratic deliberative democracy really is or ever could be. 4

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Post-deliberative pluralism reintroduces the problem of aggregation and nonconsensual decision making back into deliberative contexts. The reconciliation process generated a series of “post-deliberative” preferences, but they were heterogeneous. So compromise and bargaining remain at the centre of deliberative politics (Bohman 1998; Ferejohn 2000). Various solutions to this problem have been proposed. Habermas, and those inspired by him, have suggested two-track solutions whereby aggregation is supplemented by extra-parliamentary networks of “subpublics” and “counterpublics” that help bring about wider cultural and ideational transformations that feed through to the more formal (“stronger”) publics.15 The hope is that the proliferation of “decentred” public conversations helps people develop more reasoned views (e.g., more inclusive, better justified, better informed, etc.) to which legislators will be moved to respond. Ethical transformation begets legislative (perhaps even constitutional) change. Coming from the other direction, another suggestion is that representative institutions should be redesigned so that more explicit and openly argumentative practices are encouraged in full public view, which might generate the formation of more inclusive modes of public reasoning. Electoral reform that enables the expression of a greater range of alternatives and preferences, and thus encourages

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more negotiation and cooperation across party lines (e.g., proportional representation), is therefore required. If most people, most of the time, cannot participate extensively in democratic deliberation, then we need to find ways of representing diversity within legislative deliberation that also helps people outside legislatures form more reasoned views. The Australian case study is interesting in this regard. It was among the purposes of the reconciliation process that it promote education and awareness about Australia’s colonial legacy. It also served as a focal point for political mobilization by indigenous people (although often for competing purposes). Both of these elements contribute to the deliberative capacities of individual citizens thinking about these issues for themselves. But this has yet to be translated into broad support for the specific ends that indigenous peoples have been pushing forward. In many ways, the debate over “Aboriginal rights” remains as divided as ever. The hope is that post-deliberative disagreement is different and more productive than it would be if less deliberation had taken place. Time will tell. At the institutional level, note that the Australian Senate is elected according to a form of proportional representation (unlike the House of Representatives), and this means that it sometimes includes representatives from minor parties as well as independents. As a result, the government of the day often has to negotiate with these groups in order to pass its legislation. These negotiations and debates can (though not always) broaden the range of views about the interests at stake and hamper government attempts to radically alter policies affecting indigenous peoples for dubious political ends. So, creative institutional design, such as a truth and reconciliation commission, combined with a mixed electoral system, can contribute to a deliberative approach to historical injustice. However, the Australian case demonstrates how quickly the limits of such an approach can be reached, especially in relation to the problems outlined in (4) above. Moreover, it is not clear how the informal norms that help deliberation go well within these institutions can be sustained over time, especially when the trust that underpins them is severely strained. Rebuilding trust is crucial to addressing the legacy of historical injustice. Yet that very legacy is often one of the key factors undermining the sustainability of trust between minority groups and the state.

Notes 1 For a survey, see Ivison (2006). 2 In June 2008, the Government of Canada issued its own “Statement of Apology” to former students of Indian residential schools. It has also established an Indian Residential Schools Truth and Reconciliation Commission, to run for five years, which forms part of the negotiated Indian Residential Schools Settlement Agreement reached in September 2007 between the Government of Canada, churches, the Assembly of First Nations, and other Aboriginal organizations.

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3 See Foucault (1983), Pettit (1999), Shapiro and Hacker-Cordon (1999), and Young (2002). By domination I mean, roughly, a set of conditions in which people, individually or collectively, are prevented from acting in such a way as to modify the actions that act on them. Relations of domination exist when relations of power become fixed or stable such that, whether directly or indirectly, some are able to control – arbitrarily and with relative certainty and without reciprocation – the conduct of others. 4 See the essays in Shapiro and Hacker-Cordon (1999), especially the chapters by Przeworski and Roemer. 5 What if citizens’ effective freedom also depends on having an equal distribution of primary goods or capabilities (as it surely must)? Do our commitments to justice and democracy match up? Skeptics such as Roemer suggest that democracy often fails to promote the right kind of “equality of condition” that liberal theorists of justice prize and not merely for contingent reasons. See Roemer (1999, 62-68). 6 The two approaches are not mutually exclusive. A pre-commitment to basic rights, including rights of free speech, association, and religion, ensures that there will be debate and deliberation over the interpretation and meaning of those rights. Effective deliberation also has preconditions since deliberative democrats are not simple majoritarians. Thus, both Habermas (1996) and Rawls (1996) recognize the interdependency, to differing extents, between rights and democracy. 7 Barry actually defends deliberative democracy in earlier work (1995), but that argument sits uneasily with many of the claims he makes in his 2001 book. 8 Here respect is defined as a “civic acknowledgement ... [It is] the recognition that others are our fellow citizens and that we are willing to treat them as such as long as they demonstrate a willingness to reciprocate” (Gutmann and Thompson 2000, 39). 9 What follows is a rough sketch in need of much greater historical detail and contextualization than is possible here. 10 This petition was presented to Prime Minister Hawke at the annual Barunga indigenous cultural and sporting festival. He promised to conclude a treaty by 1990, but this never happened. 11 In fact, the original name of the council was to be the Council for Aboriginal Reconciliation and Justice, but the reference to justice was thought by Hawke’s advisers to be a bit much and was dropped in the final version. 12 It might be useful to have a sense of some of the official terms of reference of CAR: (a) to undertake initiatives for the purpose of promoting reconciliation between Aborigines and Torres Strait Islanders and the wider Australian community, focusing in particular on the local community level; (b) to promote, by leadership, education and discussion, a deeper understanding by all Australians of the history, cultures, past dispossession and continuing disadvantage of Aborigines and Torres Strait Islanders and of the need to redress that disadvantage; (c) to foster an ongoing national commitment to cooperate to address Aboriginal and Torres Strait Islander disadvantage; (d) to provide a forum for discussion by all Australians of issues relating to reconciliation with Aborigines and Torres Strait Islanders and of policies to be adopted by the Commonwealth, State, Territory and local governments to promote reconciliation; (e) to advise the Minister on policies to promote reconciliation between Aborigines and Torres Strait Islanders and the wider Australian community ... [;] (g) to consult Aborigines and Torres Strait Islanders and the wider Australian community on whether reconciliation would be advanced by a formal document or formal documents of reconciliation; (h) after that consultation, to report to the Minister on the views of the Aboriginal and Torres Strait Islanders and of the wider Australian community as to whether such a document or documents would benefit the Australian community as a whole, and if the Council considers there would be such a benefit, to make recommendations to the Minister on the nature and content of, and manner of giving effect to, such a document or documents. (Government of Australia 1991)

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13 Note that Howard also proposed a new constitutional preamble (drafted by the Australian poet Les Murray, although he later disavowed any responsibility for the final version), which included reference to Aboriginal and Torres Strait Islander people: “Since time immemorial our land has been inhabited by Aborigines and Torres Strait Islanders, who are honoured for their ancient and continuing cultures” (Behrendt 2003, 142). The proposed preamble was criticized by just about everyone on all sides of the debate. It was included in the referendum on the Australian republic held in November 1999, but the government did not really campaign for it. Both initiatives failed. 14 See (Government of Australia 2007). 15 Issues Deliberation Australia, in collaboration with a number of Australian universities as well as James Fishkin’s Centre for Deliberative Polling, held a deliberative poll on reconciliation in Canberra in February 2001. Their research showed that support for things such as the significance of reconciliation as a public issue, a formal apology, Native land rights, compensation for the “stolen generations,” a treaty, special parliamentary seats, and so on varied across both pre- and post-deliberative polling. In many cases (but not all), support for these measures increased after the highly structured and informed deliberation had occurred, although there were variations in the levels of support across different variables; see Issues Deliberation Australia (2001). However, it remains an open question what this kind of “ersatz deliberation” really shows, as useful as it is to compare with what normally passes for “public opinion” (see Goodin 2003, 174). The basic premise behind the approach is that we substitute deliberation within a subset of the population – and deliberation carried out in highly structured conditions – for deliberation across the whole. But it is not clear that, as people change their views within these smaller deliberative forums, they remain representative of what would happen in the larger group. The possible variations between different groups of different sizes are enormous, even deliberating over similar issues, just given the range of contextual circumstances that shapes such deliberations (Goodin 2003, 175-76; cf. Dryzek and List 2003).

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7 Resisting Culture: Seyla Benhabib’s Deliberative Approach to the Politics of Recognition in Colonial Contexts Glen Coulthard

Theorists who advocate a politics of difference, fluidity and hybridity in order to challenge the binaries of essentialism ... have been outflanked by strategies of power.

– Michael Hardt and Antonio Negri (2000, 138)

Over the past forty years, the self-determination efforts and objectives of Indigenous peoples1 in Canada have increasingly been cast in the language of “recognition” – recognition of Indigenous cultural/national distinctiveness, recognition of a right to exclusive jurisdiction over a defined land base and populace, recognition of existing state treaty obligations, and so on. As a result of these on-the-ground struggles, the past fifteen years have witnessed a proliferation of theoretical activity aimed at fleshing out the ethico-political significance of Indigenous and other identity-related claims (Taylor 1994; see also Kymlicka 1995, 1998, 2001; Macklem 2001; and Tully 1995, 2000a). Subsequently, “recognition” has come to occupy a central place in the academy’s efforts to comprehend the nature and scope of contestations over identity and difference in colonial contexts more generally (Tully 1995, 2000a; see also Coulthard 2007; Povinelli 2002; and Royal Commission on Aboriginal Peoples 1996). As with most normative shifts in our political horizons, the newfound importance placed on notions of “identity,” “culture,” and “recognition” in recent social and political theorizing has met with varying degrees of resistance (Clifford 2000). Social conservative critics in the West, for example, have rallied against the rise of so-called identity politics because of its perceived threat to majority rule and to the racialized, patriarchal, and heteronormative status quo that difference-blind majoritarian politics tends to uphold (Brown 2005). Meanwhile, those situated on the traditional left have repeatedly expressed their anxiety over what appears to be the excessively insular character of many culture-based, identity-related struggles.

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The concern in this case is that the inherently parochial nature of the politics of recognition is undermining more egalitarian and universal political aspirations, like those directed toward the more equitable distribution of socioeconomic goods (Rorty 1998, 2000; see also Barry 2001). “In this context,” writes Nancy Fraser (2003, 22), “recognition struggles are serving less to supplement, complicate and enrich redistribution struggles than to marginalize, eclipse and displace them.” With regard to the latter claim, insofar as Indigenous peoples’ struggles for national recognition are always simultaneously struggles for a more equitable distribution of land, political power, and economic resources (Alfred 1999, 2005; see also Tully 2000b, 2001a, 2004), I take the “recognition-as-displacement” thesis to be misguided when applied to Indigenous/settler-state contexts.2 Recently, however, another problem associated with the recognition paradigm has gained considerable currency among contemporary political theorists and has frequently been attributed to the struggles of Indigenous communities. This time the concern rests with the apparently essentialist and exclusionary conceptions of social identity that frequently anchor demands for recognition. According to recent proponents of this position, when claims for recognition are founded on reified and essentialized notions of collective identity, they run the risk of sanctioning repressive and non-consensual demands for group conformity as well as unjust practices of exclusion and marginalization (Benhabib 2002; see also Fraser and Honneth 2003). Consequently, we are told that, in order to avoid this potentially authoritarian feature of identity politics, we must ensure that the various expressions of identification and signification that underpin demands for recognition – such as “culture,” “nationhood,” and “tradition” – remain open-ended and never immune from contestation or democratic deliberation. Struggles for recognition, in other words, must begin to reflect the constructed nature of our social identities. Recognizing that social constructivist approaches to the politics of culture and identity encompass a vast range of theoretical and disciplinary perspectives, I focus here more narrowly on the recent work of political theorist Seyla Benhabib (2002), whose contribution represents what I see as an important yet problematic attempt to bridge the gap between the insights afforded by social constructivist theory and what she views as the deliberative norms and processes that ought to guide and frame democratic practice. In doing so, I argue that Benhabib’s anti-essentialist critique works in concert with an imperial feature of her deliberative democratic theory inadvertently to sanction colonial hierarchies. This can be further broken into two claims. First, I contend that when examined through the lens of Indigenous peoples’ struggles, social constructivist critiques of the politics of recognition not only tend to overestimate the emancipatory potential of anti-essentialist political projects but also fail to address the asymmetrical relations of power that often serve to proliferate exclusionary and authoritarian community

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practices to begin with. In this regard, I align myself with a small but growing number of scholars (Dirlik 2000; see also Clifford 2000; Hardt and Negri 2000; Kompridis 2005; and Scott 2005) who have begun to interrogate anti-essentialist criticism when uniformly applied to a range of conceptually distinct and power-laden contexts. Second, and this is directed more squarely at the deliberative aspect of Benhabib’s approach, I contend that when anti-essentialist theories of cultural identity are projected as a universal feature of social life – a move that Nikolas Kompridis (2005, 320) has recently termed “essentialist anti-essentialism” – and then used to evaluate the legitimacy of claims for recognition within and against the uncontested authority of the colonial state, they can inadvertently sanction the very types of domination and inequality that both social constructivist and deliberative democratic projects are supposed to mitigate. Social Constructivism and Deliberative Democratic Theory Benhabib’s The Claims of Culture: Equality and Diversity in the Global Era (2002) sets out to establish a model of deliberative democracy capable of accommodating universal demands for individual freedom and equality along with identity-specific demands for the recognition of cultural difference. According to Benhabib (8), the task of those committed to such a project – a project incorporating both multiculturalism and democratic equality – should be “to create impartial institutions in the public sphere and civil society where [the] struggle for recognition of cultural differences and the contestation of cultural narratives can take place without domination.” To accomplish this task, however, Benhabib insists that we reject claims for recognition founded on essentialist and therefore potentially authoritarian conceptualizations of culture and group identity: “Intercultural justice between human groups should be defended in the name of justice and freedom and not of an elusive preservation of cultures” (8). Identity movements that do seek to preserve the “purity or distinctiveness of cultures,” Benhabib boldly asserts, are simply “irreconcilable with both democratic and more basic epistemic considerations” (ix). Benhabib opens her critique by challenging the empirical foundation on which most contemporary theories of “mosaic multiculturalism” are based – what she terms the “reductionist sociology of culture” (2002, 4, 7-8). Quoting Terrance Turner, she contends that advocates of this form of multiculturalism often embrace an overly simplistic and neatly delineated conception of cultural identity, which, when institutionalized in the form of public policy, risks essentializing the idea of culture as the property of an ethnic group or race; it risks reifying cultures as separate entities by over emphasizing the internal homogeneity of cultures in terms that potentially legitimize repressive

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commands for communal conformity; and by treating cultures as badges of group identity, it tends to fetishize them in ways that put them beyond the reach of critical analysis. (4)

Beyond potentially legitimizing these repressive practices, Benhabib claims that the reductionist approach yields a number of other illiberal consequences, including (1) the drawing of too rigid and firm boundaries around cultural identities; (2) the acceptance of the need to “police” these boundaries to regulate internal membership and “authentic” life-forms; (3) the privileging of the continuity and preservation of cultures over time as opposed to their reinvention, reappropriation, and even subversion; and (4) the legitimation of culture-controlling elites through a lack of open confrontation with their cultures’ inegalitarian and exclusionary practices. (2002, 68)

Against the reductionist approach, Benhabib draws on the work of Homi Bhabha and others to defend the constructivist view that all cultures constitute fluid systems of meaning and representation that are continually constructed and reconstructed through “complex dialogues and interactions with other cultures” (Benhabib 2002, 184). Cultures are thus posited as “fluid, porous, and contested” (184) phenomena “which are internally riven by conflicting narratives” (ix). This does not imply, however, that cultures are unreal or fictional entities: “Cultural differences run very deep and are very real. The imagined boundaries between [cultures] are not phantoms in deranged minds; [they] can guide human action and behavior as well as any other cause of human action” (7). Also unlike the reductionist perspective, Benhabib views multicultural justice not in terms of cultural preservation or autonomy but as the “inclusion” of traditionally marginalized groups into a widening “democratic dialogue” with the citizenry, cultures, and institutions of the surrounding society (2002, ix). To facilitate this robust form of inclusion, Benhabib proposes a “dual track” (ix) model of deliberative democracy that stresses “maximal cultural contestation in the public sphere” as well as “the institutions and associations of civil society.” As long as recognition-based claims adhere to the constructivist/inclusion paradigm and allow for the contestability of cultural norms, practices, and boundaries in and through the institutional matrix of civil society and the state, certain forms of “legal pluralism and institutional power sharing through regional and local parliaments” can and ought to be accommodated (ix). To ensure that pluralist institutional arrangements meet this standard, Benhabib proposes a baseline of three “normative conditions” (19) that ought to be met by any cultural group seeking recognition and accommodation.

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1

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Egalitarian reciprocity. Members of cultural, religious, linguistic, and other minorities must not, in virtue of their membership status, be entitled to lesser degrees of civil, political, economic, and cultural rights than the majority. Voluntary self-ascription. In consociationalist or federative multicultural societies, an individual must not be automatically assigned to a cultural, religious, or linguistic group by virtue of his or her birth. An individual’s group membership must permit the most extensive form of self-ascription and self-identification possible. There will be many cases when such self-identifications may be contested, but the state should not simply grant the right to define and control membership to the group at the expense of the individual; it is desirable at some point in their adult lives that individuals be asked whether they accept their continuing membership in their cultural communities of origin. Freedom of exit and association. The freedom of the individual to exit the ascriptive group must be unrestricted, although exit may be accompanied by the loss of certain kinds of formal and informal privileges. However, this wish of individuals to remain group members, even while outmarrying, must not be rejected; accommodations must be found for intergroup marriages and the children of such marriages.

After outlining these normative requirements, Benhabib concludes that although “cultural groups may not be able to survive as distinct entities under these conditions,” they are nonetheless “necessary if legal pluralism in liberal-democratic states is to achieve the goals of cultural diversity as well as democratic equality, without compromising the rights of women and children” (2002, 20). Under Benhabib’s deliberative model, only demands for recognition that adhere to the above standards and do not deny the contestability of cultural identities and group boundaries can ensure the well-being of individual group members (184). Here the cultural preservationist impulses of essentialism are clearly portrayed as overly restrictive and rigid, whereas the inclusive domain of social constructivism is cast as democratic and emancipatory. Social Constructivism and Indigenous Self-Determination At this point, I would like to develop the first claim I made at the outset of the chapter: that in certain contexts social constructivist positions such as Benhabib’s may not only overestimate the emancipatory potential of antiessentialist political projects but may also fail to confront the inegalitarian social relations that often serve to perpetuate the types of gendered and exclusionary practices they ought to remedy. Here I believe that Benhabib’s strategic intervention into the current debate in Canada over the citizenship rights of First Nations women proves useful

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in elucidating some of the problems underlying the constructivist approach when uncritically employed in colonial contexts. Prior to 1985, all First Nations women who married non-Native men were forced to relinquish their Indian “status” under the provisions of the federal government’s 1876 Indian Act (Benhabib 2002, 54). As a result, Aboriginal women who married non-Native men were legally denied benefits commonly associated with membership in a federally recognized Indian community, including the right to live on reserve and the right to federally subsidized health and dental care, postsecondary education, reserve housing, and so on (Lawrence 2004, 54-55). In 1985, the federal government was forced to repeal the provision of the Indian Act dealing with out-marriages on the ground that it discriminated against Aboriginal women “on the basis of their sex and marital status” (Benhabib 2002, 54; also see Lawrence 2004). Not surprisingly, following the amendment to the Indian Act (known as Bill C-31), thousands of First Nations women and their children rightly applied to have their Indian status reinstated. Since implementation of Bill C-31, however, several First Nations communities have refused to grant reinstated women access to the rights and privileges associated with band citizenship on the ground that band governments have the fundamental right to determine who does and does not constitute a member of the community (Alfred 1995, 177). To further complicate matters, many First Nations leaders have employed the language of “self-determination,” “tradition,” and “cultural preservation” to justify these sexist and exclusionary practices (Green 2001, 2003). Under Benhabib’s deliberative model, the situation described above is obviously unacceptable. In fact, one could argue that it provides a textbook example of why preservationist demands for recognition and national selfdetermination should not outweigh the universal rights of individual group members. Furthermore, it appears to demonstrate how the institutional accommodation of essentialist expressions of cultural identity (e.g., through the allocation of self-government rights) can facilitate the further exclusion and marginalization of a community’s less powerful members, especially when this form of accommodation is not subject to the norms that guide deliberative democratic practice or adhere to baseline conditions such as Benhabib’s egalitarian reciprocity, voluntary self-ascription, and freedom of exit and association. Although I agree with Benhabib’s condemnation of these exclusionary practices as unjust, I nonetheless must challenge her identification and assessment of the supposed source of these practices: I do not believe that developing a deliberative institutional order that polices a more open-ended, fluid, and contestable understanding of cultural identity can subvert the deeply entrenched relations of power in play here. Put bluntly, these exclusionary practices are a symptom of a problem rooted in the colonial relationship itself: a relationship on which the whole state political, economic, and social structure is predicated.

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Like most poststructuralist proponents of social constructivism, Benhabib’s neo-Kantian appropriation of anti-essentialist criticism represents both an empirical statement about the constructed nature of cultural identities and a normative project aimed at social transformation.3 Indeed, I would argue that recognizing the social fact of cultural contestability is a necessary yet insufficient condition for cultivating what most deliberative democrats posit as a just democratic order. In other words, what is convenient about the social constructivist position for the deliberative democratic project is that it justifies subjecting “the cultural” to the norms that guide deliberative conceptions of “the political”: that is, it renders cultural forms subject “to appropriate processes of public deliberation by free and equal citizens” (Benhabib 2002, 106; see also Deveaux 2005). To be sure, when viewed from this angle, it appears that the very possibility of cultivating a truly democratic and emancipatory multicultural politics rests on culture’s so-called fluid and therefore negotiable nature. The problem with this perspective, however, as scholars such as Hardt and Negri (2000, 137-50) have argued, is that it assumes that the oppressive relations of power being deconstructed operate in a precise manner. The efficacy of anti-essentialist interventions such as Benhabib’s rests on the assumption that unjust configurations of power are produced and maintained primarily through the production and naturalization of hierarchically ordered binary oppositions based on what appear to be innate differences – between, say, male and female, black and white, gay and straight, colonizer and colonized. And indeed, in contexts where oppressive relations are sustained through these divisions, the affirmation of “hybridity and [the] ambivalences of our cultures and senses of belonging seem to challenge the binary logic of Self and Other that stands behind colonialist, sexist, and racist constructions” (Hardt and Negri 2000, 139). But what does this strategic intervention have to say about situations in which relations of dominance and subordination are not primarily produced or sustained through these essentialized, binary divisions? I ask because, in the context of Indigenous women’s struggle for community citizenship rights, the binary logic that ought to be at the source of their marginalization is not readily apparent. There is no doubt that certain segments of the male Native elite have problematically employed the culturalist vernacular of “tradition” and “self-preservation” to justify their exclusionary practices, but, as mentioned before, I think that the reification and misuse of culture in this context are more accurately understood as symptoms rather than sources of the problem. At issue here is the structure of domination and inequality that anchors the Canadian state’s relationship with Indigenous communities, not the production and maintenance of non-negotiable identity formations. The brutally impoverished psychological, social, and economic conditions that Indigenous peoples are forced to endure on a daily basis are appalling. As a recent United Nations report documented, the

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economic, social and human indicators of well-being, quality of life and development are consistently lower among Aboriginal people than other Canadians. Poverty, infant mortality, unemployment, morbidity, suicide, criminal detention, children on welfare, women victims of abuse, child prostitution, are all much higher among Aboriginal people than in any other sector of Canadian society, whereas educational attainment, health standards, housing conditions, family income, access to economic opportunity and to social services are generally lower. (Stavenhagen 2005, 2)

Tragically, these conditions have made it virtually impossible for First Nations governments to provide an adequate system of support for the members they have now, let alone thousands of reinstated women and children. In fact, by thrusting these disadvantaged members into the hands of communities without rectifying the profound inequality that structures the relationship between Indigenous peoples and the state, the federal government has simply aggravated the problem and fractured these communities even further (Monture-Angus 1995, 184; see also Lawrence 2004, 64-84). In such contexts, I simply do not see how normatively privileging hybrid cultural forms can subvert the colonial power relations at the root of these unjust practices. To be sure, even if we were to deconstruct and expose the Native elite’s self-serving misuse of culture as a means of maintaining their patriarchal privilege, we would still leave intact the underlying social relations that prompted the misuse to begin with. In effect, we would be locked in a vicious circle of essentialist claims making and identity deconstruction, having to repeatedly deliberate about and unpack problematic identity claims and practices only to have them resurface in another place and context because we have failed to undermine the conditions of their production. In this case, at least, it appears that the underlying “structure and logic of power” is largely “immune to the ‘liberatory’ weapons of the postmodernist politics of difference” (Hardt and Negri 2000, 142). Mohawk legal theorist Patricia Monture-Angus has expressed similar anxieties. For instance, with reference to the Bill C-31 example used by Benhabib, Monture-Angus has convincingly argued that any analysis that seeks to understand and/or combat the sexist use of essentialized notions of culture and tradition to justify the exclusion of reinstated women and children must address the colonial context in which these practices play out. “Understanding how patriarchy operates in Canada without understanding colonization is a meaningless endeavor from the perspective of Aboriginal people,” writes Monture-Angus; “the Canadian state is the invisible male perpetrator who unlike Aboriginal men does not have a victim face” (1995, 175). However, instead of developing a political strategy based on an acute understanding of the complex interrelationship between colonial, state, and patriarchal forms of domination, organizations such as the Native Women’s

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Association of Canada (NWAC) have spent their time and energy focusing primarily on attacking the unconstitutionality of the discriminatory actions of First Nations governments (Monture-Angus 1995, 181-83).4 Ironically, however, in the long run this state-centred legal strategy has served to reinforce, not undermine, the logic of colonial and patriarchal rule in Native communities. As Monture-Angus writes, “The efforts of Aboriginal women against the oppression of the Indian Act have only succeeded in achieving a more equal access to the [colonial] system of band membership and Indian registration for women previously enfranchised. [But] equal access to oppressive laws (colonialism) is not progress” (183). Cultures of Resistance: Tradition as Transformative Strategy The emancipatory potential of the constructivist paradigm is even less convincing in contexts where Indigenous activists have employed essentialist notions of tradition and culture in their efforts to transcend the forms of exploitation and domination they face at the hands of the liberal settler state. For example, in offering an alternative to the legal strategy adopted by NWAC noted above, Monture-Angus (1999, 148) proposed that communities approach the question of systemic gender inequality in a manner that conforms to the “cultural understanding of Aboriginal reality.” For her community specifically, doing so would likely involve the critical reconstruction and reinstitutionalization of precontact cultural values and political traditions, based on kinship systems within which women traditionally enjoyed the right to “select and even depose chiefs, and had competence in such matters as land allotment, supervision of field labor, the care of the treasury, the ordering of feasts and the settlement of disputes” (MontureAngus 1995, 241). Thus, “the concept of kinship relations is an important key in understanding traditional justice mechanisms and establishing those relations ... is necessary to restore women’s respected position in First Nations society” (241). Mi’kmaq scholar Bonita Lawrence (2004, 61) has proposed an analogous strategy, arguing that the regeneration of matriarchal governance structures can go a long way toward repairing the legacy “of having patriarchal relations enforced [in Native communities] for over a century by the Indian Act.” Such an approach stands in marked contrast to the mainstream women’s anti-violence and anti-discrimination movement, which has too often been reliant on the state and its “racist and colonial legal system” (Smith 2005, 5) to challenge the array of oppressive practices that this system has helped create and maintain. Alternatively, community activists such as Lawrence insist that Indigenous community members begin to acknowledge the ways in which their internally exclusionary and sexist practices relate to and perpetuate colonial domination and then take action to rectify the situation themselves. For Lawrence and Monture-Angus, it is

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through this intersectional, grassroots approach to addressing the complex problem of colonial-gender relations that Native people must begin the arduous process of rebuilding healthy and egalitarian relations within their national communities. Only once this has happened can Indigenous communities conceive of entering “into much more powerful relations with the dominant society” (Lawrence 2004, 15). Unfortunately, however, for these Indigenous feminists there is perhaps nothing more counterproductive than the tendency of both prescriptive anti-essentialism and liberal democratic theory to implicate kinship systems, rather than incriminate state-sanctioned and -supported colonial hierarchies, in the operation of Indigenous governing and social structures. Unlike the moderate welfarism that currently frames the horizons of liberal theories of distributive justice and social democracy, many Indigenous struggles for self-determination continue to include an incisive critique of the inherently inegalitarian and exploitative nature of capitalism and its associated forms of development. In the 1970s, for example, my community, the Dene Nation of what is now the Northwest Territories of Canada, developed such a critique of the North’s resource economy and applied it in our demand for cultural recognition (Dene Nation 1977). The following statement by Philip Blake to the Mackenzie Valley Pipeline Inquiry is indicative of our general position during this time: We are threatened with genocide only so that the rich and powerful can become more rich and powerful ... If our Indian Nation is being destroyed so that poor people of the world might get a chance to share this world’s riches, then, as Indian people, I am sure that we would seriously consider giving up our resources. But do you really expect us to give up our life and our land so that those few people who are the richest and the most powerful in the world today can maintain and defend their own immoral position of privilege? That is not our way.5

When Blake suggests that, “as Indian people,” the Dene reject the pathological drive for accumulation that fuels capitalist imperialism, he is basing this statement on a conception of Dene identity as embedded in an expansive system of egalitarian and reciprocal relations that encompasses the land and animals, lakes and rivers, past and future generations, as well as other people and communities. For many Natives at the time of Blake’s testimony, this relational conception of national identity was non-negotiable; it was viewed as an essential and constitutive element of what it meant to be Dene. More than this, it also demanded that we conduct ourselves in accordance with certain ethical-political norms that stressed egalitarianism, the importance of sharing, respecting the autonomy of both individuals and collectivities, and

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recognizing the obligations that one has not only to other people but also to the natural world as a whole. It was this culturally rooted and informed placebased ethics that grounded not only my community’s critique of capitalist development but also our demand for recognition and self-determination. A similar ethic can be said to inform the work of a growing number of today’s most prominent Indigenous scholars and activists (Alfred 1999, 2005; Maracle 1996; Smith 2005). Mohawk political scientist Taiaiake Alfred, for example, has repeatedly argued that the goal of any traditionally rooted self-determination struggle ought to be to protect that which constitutes the “heart and soul of Indigenous nations: a set of values that challenge[s] the homogenizing force of Western liberalism and free-market capitalism; that honor[s] the autonomy of individual conscience, non-coercive authority, and the deep interconnection between human beings and other elements of creation” (1999, 60). For Alfred, this vision not only is embodied in the practical philosophies and ethical systems of many of North America’s Indigenous societies but also flows from a “realization that capitalist economics and liberal delusions of progress” have historically served as the “engines of colonial aggression and injustice” itself (2005, 133). The above cases demonstrate how seemingly essentialist notions of tradition and culture, instead of further entrenching or sanctioning exploitative and authoritarian practices, can inform radical critiques of a host of oppressive power relations. In these contexts, the essentialism/constructivism dichotomy underlying Benhabib’s deliberative approach to cultural accommodation – where essentialized identities are viewed as “reactionary and crippling and their transgressions as a symbol of creativity and freedom” (Parekh 2000, 150) – does not provide a particularly illuminating or constructive way to approach the forms of injustice faced by Indigenous peoples today. James Clifford (2000, 99) has perceptively framed the problem this way: when constructivist-inspired “critiques of identity [are allowed to harden] into theoretical dogma, they may dismiss historically adaptive forms of cultural integrity in the same breath as essentialist assumptions of authenticity.” This is especially troubling from the position of subaltern “resistance movements,” for which these dominant critiques of essentialism can be profoundly disempowering, especially when pitted against and tangled up with claims against colonial law and the state (99). Social Constructivism, Colonial Domination, and the State I have suggested that, like many poststructuralist advocates of social constructivism, Benhabib’s universalist critique of the politics of recognition represents both a sociological statement about the fragmented and hybrid nature of cultural identities and a normative project aimed at progressive social change. However, unlike the many poststructuralist-inspired theorists

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who tend to view cultural criticism as a potentially transformative practice on its own,6 Benhabib moves beyond the realm of deconstructive critique and applies what she sees as the best insights of social constructivist thought to the development of a deliberative project capable of accommodating justifiable demands for cultural recognition without violating individual claims to equality. Here I think she makes a problematic move: once she establishes the constructedness of cultural identities as a universal feature of social life, she proceeds to ground her “normative views on what a political order ought to be, [based] on that universal description” (Butler, Laclau, and Žižek 2000, 14-15). What should this political order look like? As noted previously, for Benhabib it should comprise “impartial institutions in the public sphere and civil society where [the] struggle for recognition of cultural differences and the contestation of cultural narratives can take place without domination” (2002, 8). If group demands for cultural recognition meet this deliberative standard, then there is no reason why the state should not provide legal and institutional accommodation for the group in question (x, 19-20, 184). This, again, is quite different from the standard poststructuralist position, which tends to view the institutionalization of any claim to universality with suspicion (Butler, Laclau, and Žižek 2000, 15). Thus far, my critique has been directed fairly broadly at the imperial implications of what I have characterized as an uncritical normative privileging of cultural contestability in much anti-essentialist cultural criticism, including Benhabib’s. Seen from this angle, her deliberative approach appears problematic only insofar as it has appropriated this uncritical strand of constructivist thought. In this section, I want to flip the gaze around. That is, I want to examine more closely the imperial implications of Benhabib’s deliberative democratic model and in doing so show how her social constructivist commitments work in concert with this model to reinforce colonial structures of dominance. Stated bluntly, I claim that by employing the so-called social fact of cultural fluidity, narrativity, and contestability as a standard against which democratic theorists, judges, policy makers, and the state ought to assess the legitimacy of claims for recognition, Benhabib’s theory potentially sanctions the very forms of power and discrimination that anti-essentialist democratic projects are supposed to undercut. First, by placing the burden squarely on the shoulders of claimants of recognition to prove that their identity movements do not deny the contestability of cultural practices before they are eligible for institutional accommodation, Benhabib’s model potentially renders rectifying forms of recognition and redistribution unattainable for Indigenous groups whose cultural expressions do not adhere to this form. Second, and more problematically, even if Indigenous claims for recognition do manage to meet these criteria, her theory leaves uninterrupted the colonial social

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and political structure that is assigned the adjudicative role in assessing recognition claims and enforcing deliberative decisions. This second point is what Duncan Ivison, in this volume, perceptively refers to as the “legitimacy problem” faced by most deliberative approaches when applied to the colonial arena. I will discuss these two problems in turn. As we saw above, in many cases Indigenous peoples’ struggles for recognition and self-determination defy the protocols associated with social constructivist criticism. As Arif Dirlik has commented: Not only do [Indigenous struggles] affirm the possibility of a “real” native identity, but [they] also assert for the basis of such an identity a native subjectivity that has survived, depending on location, as many as five centuries of colonialism and cultural disorientation. Not only [do they] believe in the possibility of recapturing the essence of precolonial Indigenous culture, but [they] also base this belief on a spirituality that exists outside of historical time ... In all of these different ways, Indigenous ideology would seem to provide a textbook case of “self-Orientalization.” (2000, 207)

We also saw that, in some instances, Indigenous leaders have defended essentialist notions of culture to legitimize the exclusion of disenfranchised women and children from full participation in the life of the community, yet in other cases these conceptions have been creatively invoked as a means of resisting relations of dominance and subordination. Benhabib, however, focuses solely on the non-democratic and repressive aspects of essentialist identity formations, and this understanding is subsequently reflected in her deliberative approach. The potential problem here, of course, is that, by theoretically and institutionally privileging recognition claims that adhere to a negotiable and inclusive conception of culture, it is unclear which Indigenous claims Benhabib’s deliberative model would be willing and able to accommodate. For one, almost every Indigenous demand for recognition that I can think of is couched in the vernacular of “cultural survival,” “preservation,” and “autonomy” – and rightfully so given the history of genocidal state assimilation policies that Indigenous people and communities have been forced to endure (Stannard 1992; see also Lawrence 2004 and Smith 2005). My point is this: as it stands, Benhabib’s a priori rulingout of any remotely essentialist and therefore inherently suspect attachments to one’s culture and traditions would likely deem problematic any Indigenous claim for recognition that took cultural continuity and collective wellbeing seriously. Take, for example, any number of claims for recognition that have emerged in the Canadian context over the past twenty-five years. Would legal and political accommodation for First Nations that demand exemption from the Charter of Rights and Freedoms on the ground that it represents an insidious form of cultural imperialism be acceptable under a

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deliberative democratic model (Turpel 1989-90)? What about the implementation of ceremonial practices (Denis 1997), or traditional justice initiatives (LaRoque 1997), which appear to clash with liberal norms of individual freedom and equality? Or what about communities that want to fight the demoralizing effect of decades of imposed governance through the Indian Act by revisiting the traditional roles of hereditary chiefs in their national political institutions? Even though the use of culture and tradition in all of these examples represents a potentially powerful means of undercutting the corrosive effects associated with five centuries of colonial governance, all would likely be unacceptable in a deliberative democracy given the norms set by Benhabib. In the concluding chapter of The Claims of Culture, Benhabib recognizes the challenge that Indigenous struggles for self-determination present to her position. “These peoples,” she writes, “are seeking not to preserve their language, customs, and culture alone but to attain the integrity of ways of life greatly at odds with modernity.” She continues: While being greatly sceptical about the chances for survival of these cultural groups, I think that from the standpoint of deliberative democracy, we need to create institutions through which members of these communities can negotiate and debate the future of their own conditions of existence ... As I have suggested ... the self-determination rights of many of these groups clash with gender equality norms of the majority culture. [However, if] selfdetermination is viewed not simply as the right to be left alone in governing one’s affairs, but is also understood as the right to participate in the larger community, then the negotiation of these ways of life to accommodate more egalitarian gender norms becomes possible. (2002, 185)

Leaving aside her colonial invocation of the “vanishing race” trope, Benhabib recognizes the limits of her approach in colonial contexts, but in the end she is still unrelenting in her commitment to a conception of democratic governance that views justice for Indigenous communities in terms of their greater inclusion in the institutional matrix of the larger settler society. Indeed, her whole approach appears to suggest that this inclusion is necessary so that Indigenous peoples’ non-liberal, non-modern cultural norms and practices remain open to contestation and group deliberation. Indigenous peoples, in other words, require access to the deliberative mechanisms and democratic institutions of the colonial society for the well-being of their own citizens. Although Benhabib’s proposal may avoid some of the pitfalls associated with exclusionary group practices, it nonetheless leaves unscathed the presumption that the colonial state constitutes a legitimate authority to determine which demands for Indigenous recognition ought to be accommodated and which ought to be denied (Day 2001). Ironically, however, the state’s assumed position in these struggles is itself what is

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contested by Indigenous claims for cultural recognition. Also ironic is the fact that the state’s assumed authority in these matters is premised on the profoundly essentialist, indeed racist, understanding that Indigenous peoples were too uncivilized to constitute equal and self-determining nations when European powers unilaterally asserted their sovereignty over Native North America. Let me elaborate in the Canadian context. When the first Europeans arrived in what is now Canada, survival required that they immediately enter into political and economic relationships with the diverse, sovereign, and self-governing Indigenous nations they encountered (Tully 2000a, 419). Over the following four centuries the relationship between Aboriginal nations and the growing settler society underwent substantial changes, shifting from “mutually beneficial associations ... between equal nations to the coercive and imposition of a structure of domination” (Tully 2000a, 419). As the settler society grew in numbers and strength, Tully further notes, its dependence on the technologies and knowledge of Indigenous peoples began to wane, and the relationship shifted from one premised on peaceful coexistence and equality between peoples to a colonial relationship “in which Aboriginal peoples and their cultures were treated as unequal and inferior” (419). Over the past decade, numerous scholars (Alfred 1999; Asch 1999; Macklem 2001; Tully 2000b) have convincingly shown how the conceptualization of Native peoples as politically and culturally inferior continues to inform Canada’s presumed authority over Indigenous lands and people.7 By depicting Indigenous societies as uncivilized, settler nations were able to justify unilaterally asserting supreme jurisdiction over Indigenous peoples and their territories because they were deemed too “primitive” to have governing institutions with political jurisdiction over lands and citizens (Tully 2000a, 419). In essence, Tully continues, because Indigenous peoples were considered so low on the natural scale of social evolution, settler powers felt justified in claiming North America legally vacant, or terra nullius, “and sovereignty was acquired by the mere fact of discovery” (419). As Michael Asch has pointed out, the Supreme Court of Canada still implicitly and consistently invokes the terra nullius thesis to justify the unequal distribution of sovereignty that structures the relationship between Indigenous peoples and Canada (1984, 1997, 1999, 2002). Thus, even though the courts have secured an unprecedented degree of protection for Aboriginal “cultural” practices within the state, they have consistently refused to challenge the racist origin of Canada’s assumed sovereign authority over Indigenous peoples and their territories. If, as I have argued, Benhabib’s use of social constructivism represents not only an empirical statement about the nature of cultural identities but also a means of undercutting those forms of domination and inequality that she

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views as being legitimized through the reification of essentialist and nonnegotiable cultural forms, then her theory has failed to serve its purpose in the colonial context. In fact, by treating the state as a natural and uncontested arbiter in struggles for recognition – or, as Richard Day has put it, by assuming that “the state somehow ‘inherently’ occupies a pole of universality, [providing an] appropriate ground for dialogue between [Indigenous peoples,] ethnic groups, regions, and so on” (2000, 222) – Benhabib’s model has firmly embedded Indigenous peoples within the structure of domination that their claims for cultural recognition posit as unjust and illegitimate. As Dirlik has recently argued, it is through this double manoeuvre – namely, the uncritical and premature positing of cultural “in-betweenness” as both a universal and a normative aspect of “the human condition” – that antiessentialist democratic projects abandon their transformative potential and crystallize into a “new kind of determinism from which there is no escape” (2000, 205). Conclusion To avoid some of the problems that have come to the fore in the preceding pages, I think it crucial that advocates of anti-essentialist criticism begin to acknowledge that, as discourses, both constructivist and essentialist articulations of identity can aid in either the maintenance or the subversion of imperialist configurations of power. In this sense, I am employing “discourse” in a straightforwardly Foucaultian manner to refer to the myriad ways in which the objects of our knowledge are defined and produced through the languages we employ in our engagement with the world and with others. Discursive formations, in other words, are not neutral; they “construct” the topics and objects of our knowledge; they govern “the way that a topic can be meaningfully talked about and reasoned about. [They also influence] how ideas are put into practice and used to regulate the conduct of others” (Hall 1997, 44). Just as discursive formations can legitimize certain ways of thinking and acting, Stuart Hall elaborates, so too they can profoundly limit and constrain “other ways of talking and conducting ourselves in relation to the topic or constructing knowledge about it” (44). And it is precisely on this last point that I believe constructivist-inspired projects of deliberative democracy such as Benhabib’s have failed: in their a priori attack on all essentialist claims making, they have refused to acknowledge the repressive ways in which their own discursive interventions have effectively undermined certain forms of subaltern resistance and have thus unduly constrained the field of legitimate action for Indigenous peoples in their struggles against colonial domination. No discourse of identity should be prematurely cast as either inherently productive or repressive prior to an engaged consideration of the historical, political, and socioeconomic contexts and actors involved (Dirlik 2000; see

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also Fuss 1989 and Tully 2004). According to Tully, such an approach would minimally require “listening to the people engaged in the struggles over prevailing norms of recognition in their own terms” with the hope of establishing a firm grasp on what “the conflict is actually about” (94). In the context of universalist strands of deliberative democratic thought, paying closer attention to context when studying the underlying dynamics of identity-related struggle would better enable critics, especially those writing from positions of privilege and power, to distinguish between “discourses that naturalize oppression and discourses that naturalize resistance” (Tobin 1994, 131; emphasis added). This is particularly relevant from the perspective of Indigenous peoples’ struggles, where activists sometimes employ seemingly essentialist notions of culture and tradition in their efforts to transcend, not reinforce, oppressive structures and practices. Acknowledgments I would like to thank Taiaiake Alfred, Rita Dhamoon, David Kahane, John Munro, Robert Nichols, Audra Simpson, Jakeet Singh, Jim Tully, and Melissa Williams for their helpful comments on earlier drafts of this chapter.









Notes 1 In the following pages, I use the terms “Indigenous,” “Aboriginal,” and “Native” interchangeably to refer to the descendants of the original peoples who traditionally occupied the territory now known as Canada prior to the arrival of European powers. I use the terms “Indian” and “First Nation” to refer to those legally recognized as Indians under the federal government’s Indian Act of 1876. Periodically, I also refer to indigenous people and communities by referring to their individual national identifications, such as Mohawk, Dene, Mi’kmaq, and so on. 2 Ian Angus makes a noteworthy point when he suggests that the traditional left’s concern with the supposedly parochial nature of cultural claims, as opposed to universal claims grounded on economics and class, is a “relic of the base-superstructure distinction between ideology and material conditions that has received its own share of deconstructive energy over the last two decades.” However, Angus goes on to suggest that when “culture” is understood in the thicker “anthropological sense” to “encompass both ideology and material conditions” (as is the case with indigenous peoples’ cultural claims), it renders the sharp distinction between base-superstructure, the cultural and the economic, “rather useless as a starting point for social philosophy and political criticism” (1997, 3). 3 The following interpretation of Benhabib’s critique of essentialism is indebted to Hardt and Negri’s (2000) analysis of Bhabha’s postcolonial criticism. See also Bhabha (1994). 4 It was NWAC that initially led the fight of disenfranchised Aboriginal women against the discriminatory actions of First Nations governments. 5 Berger (1977, 7-8; emphasis added). The Mackenzie Valley Pipeline Inquiry was established by the Trudeau administration in the mid-1970s as a response to widespread Native opposition to the proposed Mackenzie Valley Pipeline, which would have traversed the Northwest Territories from the Arctic Ocean south to northern Alberta. For the inquiry’s recommendations, see Berger (1977). 6 Take, for instance, Bhabha’s suggestion that by deconstructing and exposing the fractured and in-between spaces of social identities we “open up” the very “possibility of a cultural hybridity that entertains difference without an assumed or imposed hierarchy” (1994, 4). For a discussion of both the transformative possibilities and the limits of Bhabha’s project, see Hardt and Negri (2000, Chapter 2.4). 7 For a survey of literature in the American context, see Churchill (2003) and Williams (1999). In the Australian context, see Reynolds (1996).

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8 The Implications of Incommensurability for Deliberative Democracy Jorge M. Valadez

One of the central aspirations of deliberative democracy is to provide a legitimate normative basis for collectively binding democratic decisions. According to deliberative democracy, the legitimacy of democratic decisions is grounded on requirements such as the inclusion in deliberations of all those affected by political decisions, publicity regarding the processes of political negotiation, a willingness to subject one’s views to critical scrutiny, a focus on the common good, and a commitment to the political equality of all members of the polity. In addition, many advocates of deliberative democracy include among these requirements a commitment to provide reasons for one’s position that other deliberators find persuasive and acceptable. That is, they would claim that democratic deliberation involves more than merely giving reasons for one’s position; it also involves providing reasons that are acceptable from the perspectives of other members of the political community.1 It is in connection with this latter requirement that the issue of incommensurability of cultural perspectives arises. In some cases where incommensurability between cultural perspectives or worldviews exists, it may not be possible to provide reasons for policy decisions that all deliberators would find reasonable and persuasive. In these cases, it is highly unlikely that disagreements between deliberators can be resolved on the basis of mutually acceptable reasons. If the arguments I present here are sound, then it would be advisable for deliberative democracy to take a “pragmatic turn” and give up the insistence that deliberative agreement should always be based on common reasons. In the first part of the chapter, I define incommensurability and discuss the kinds of problems it creates for deliberative democracy. In the second part, I examine two concrete cases of deliberation involving varying degrees of incommensurability and discuss the implications of these cases for deliberative democracy. In the final section, I indicate briefly how the negative consequences of incommensurability can be mitigated through educational policies that promote intercultural understanding.

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The Nature of Cultural Worldview Incommensurability As I employ the notion of incommensurability, it is not an all-or-nothing affair. That is, cultural frameworks can be incommensurable in different ways and to different degrees (Lakoff 1987, 322-24, Chapter 18). Cultural frameworks are incommensurable when they differ with regard to their categories, the entities to which they grant ontological status, their normative judgments or principles, or the epistemic procedures through which claims are legitimized.2 Two frameworks are category incommensurable when one framework employs a category or concept for which there is no equivalent in the other framework. For instance, there is no category or concept in the English language3 that corresponds to the Japanese concept of seppuku, which refers to a form of ritualistic suicide by disembowelment. Similarly, the category of private property so prevalent in Western societies is not found in the traditional languages of many Indigenous cultural groups. Worldviews are domain incommensurable when they disagree regarding the entities that exist. Some African cultural traditions, for example, believe in the existence of the “living dead,” people who have died recently and are in a transitional existential state in which they are still close to the everyday world but will eventually move on to an eternal afterlife. In Western cultures, there are no entities that we believe exist that have the characteristics of the “living dead.” Cultural frameworks are normatively incommensurable when they differ with regard to their values or normative practices. Differences in values and normative practices can apply over a wide range of sociocultural, political, economic, and ecological domains. Epistemic incommensurability involves differences in the criteria employed to ascertain the truth of empirical and normative claims. Some cultural groups, for example, believe in epistemic procedures that are radically different from those held by people in most contemporary Western societies, such as the belief that dreams can be legitimate sources of knowledge. As we will see later, these forms of incommensurability, depending on how they affect the issues under consideration, can pose problems for the deliberative ideal of reaching agreement on the basis of common reasons. For the purposes of democratic deliberation, many forms of incommensurability do not present insurmountable problems for mutual understanding. Generally speaking, when a framework or worldview has the conceptual resources for understanding the components of another framework, it is possible to understand how the adherents of the other framework classify things in the world, make normative judgments, determine the truth of claims, and so forth. When trying to understand a different framework, it is not necessary that we find a category, normative principle, or epistemic validating procedure in our own framework that corresponds directly to

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these respective components in the other framework. It will suffice if we are able to translate or describe these framework components using the conceptual resources of our own framework. Thus, even though there is no correlate in English for the Japanese concept of seppuku or the African concept of the “living dead,” the English language is sufficiently rich for us to understand these concepts with a reasonable degree of accuracy.4 Even in cases involving untranslatability, it is possible to understand another framework by familiarizing ourselves with it; by learning how those who hold a different framework categorize entities in the world, explain events, legitimate empirical and normative claims, and so forth, we can come to see the world differently. Although this process of understanding will generally be more complex and lengthier than translating the concepts of that framework, in principle there is no reason why we could not expand our conceptual horizons sufficiently to understand even a radically different framework. With the appropriate training and a willingness to learn the new framework, we could eventually learn to conceptualize and even experience the world in a novel way. It is important to point out, however, that translation and familiarization would enable us to understand the other framework but not to eliminate all framework differences. What we attain by translation or familiarization is understanding of a different framework but not a consistent incorporation of this framework into our own or a transcendence of deep and important differences that may exist between the frameworks. The incommensurability between different frameworks would remain; what we would have achieved is a comprehension of the various components of the other framework. The latter, of course, would itself be an important achievement but would not signify an elimination of all the problems incommensurability creates. We can now begin to understand the problems incommensurability presents for deliberative democracy. Even in the best circumstances, in which deliberators make extended and sincere efforts to understand one another, understanding a different framework through familiarization would not always solve the difficult dilemma of finding a mutually acceptable basis for resolving disagreements. Such disagreements could still arise regarding, for example, metaphysical beliefs, normative principles, or epistemic procedures for validating empirical and normative claims. It is worth noting that the problems incommensurability creates for democratic deliberation arise not from our inability to understand a different framework but from the absence of a common cognitive or normative basis for legitimating claims or resolving disagreements. Authors who question the existence of incommensurability, such as Benhabib (2002, Chapter 2) and Davidson (1984), believe that the problem with the notion of incommensurability is the claim that we are unable to understand a radically

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different framework. Their argument against incommensurability thus proceeds by challenging this claim. More specifically, by pointing out that the very fact that we can describe such frameworks already proves that we can indeed understand them (for we could not describe these radically different frameworks as distinct from ours without understanding them in the first place), they believe they have managed to show that claims of incommensurability are incoherent. But their argument fails because it is not our inability to understand other frameworks that is at issue here (for we can understand frameworks that are incommensurable with ours through translation or familiarization) but the absence of a common domain of discourse, common categories, normative judgments or principles, or epistemic validation procedures that would allow deliberators who hold very different frameworks to agree on the reasons for accepting given policies or decisions. Of course, if we define an incommensurable framework as one incapable of being understood, as these authors insist on doing, then it follows trivially that the claim that we know such frameworks exist is incoherent, for we could not verify their existence unless we were able to recognize and understand them as different frameworks to begin with. But given how I use the concept of incommensurability, there can be different kinds and degrees of incommensurability, and partial incommensurability, if it pertains to crucial areas of disagreement, is all that is needed to create problems for the deliberative ideal. Even partial incommensurability5 can present problems for deliberative democracy, despite the possibility of mutual understanding, because of the demanding requirement that differences between deliberators be resolved on the basis of mutually acceptable reasons – that is, reasons that are agreeable with the perspective of all deliberators. But in situations where cultural frameworks differ radically with regard, say, to their normative principles, metaphysical views, or procedures of epistemic validation, it may not be possible to find such reasons. In these cases, when the members of a cultural group provide reasons for their decisions, these reasons will not be convincing to the members of other cultural groups. For instance, some cultural groups may believe that the value of land and natural resources should be measured in monetary terms, other groups may hold that the Earth should always be treated with reverence, and still others may maintain that we have relations of moral reciprocity with animals. In intercultural deliberation in these areas, the reasons given by each side in support of collective policies will likely not be compelling or even remotely plausible to the other side. Moreover, procedural deliberative problems can arise when the members of a cultural group maintain that certain kinds of knowledge should not be publicly disclosed, even when such knowledge is relevant to the case at hand. In this case, a fundamental procedural requirement of deliberative

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democracy – namely, publicity – would be rejected. It is highly unlikely in this case that deliberation could proceed in a manner that respected the perspectives of all deliberators. Incommensurability thus poses procedural as well as substantive problems for democratic deliberation. My position does not depend on the claim that “meaning holism” exists between cultural frameworks or perspectives. According to the holism thesis, the meaning of a term in a conceptual framework is wholly determined by its connections to the other terms or components of that framework. Because meaning is framework dependent, according to this thesis, all understanding is framework bound, so that it is not possible to understand, much less critique, a framework “from the outside,” that is, from the perspective of another framework. Thus, according to the holism thesis, to the extent that different cultures employ different conceptual frameworks, genuine intercultural understanding or criticism is out of the question since there is no way to understand or critique a term or belief of a culture except from within the context of that culture itself. In brief, meaning holism maintains that cultural frameworks are wholly enclosed or sealed cognitive structures that do not allow for cross-cultural understanding or evaluation. I seriously doubt that meaning holism is correct, but this is not the place to present a detailed refutation of this thesis.6 It should suffice to say that it is a mistake to identify my position regarding incommensurability with meaning holism. Although meaning holism represents a strong form of nearly complete incommensurability, my position requires only partial incommensurability. I am not at all committed to the idea that cultural perspectives or frameworks are self-enclosed, impenetrable cognitive structures. On the contrary, I would maintain that cross-cultural understanding is in most cases possible and that cultural frameworks often cognitively and normatively overlap in significant ways. In some cases, however, incommensurability does exist regarding certain components of cultural frameworks, such as their conceptions of reality or their procedures for claim verification. Such partial incommensurability is sufficient for the problems posed by incommensurability to deliberative democracy to arise. As we will see in the examples that follow, when the partial incommensurability is in the area of disagreement, it will be highly unlikely, and in some cases practically impossible, for dilemmas in deliberation to be resolved based on common reasons. In arguing that disagreements involving incommensurability cannot be resolved on the basis of mutually acceptable reasons, I do not mean to imply that no political solutions can be found in these cases. Compromises can still be reached even in these particularly problematic situations, but these compromises will be based not on common reasons that underlie our positions but on strategic rationality that relies on bargaining and values such as prudence, convenience, and self-interest. In these scenarios, the

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deliberative democratic ideal of resolving differences on the basis of common reasons that are cognitively and morally acceptable from the perspective of all deliberators can no longer be reasonably maintained. Incommensurability in Practice The Zapatista Uprising A concrete example of political negotiations involving different cultural perspectives is the conflict between the Mexican government and the Zapatistas of southern Mexico. On January 1, 1994, the Zapatista Army for National Liberation (EZLN), a military and political organization composed primarily of Maya Indians from the state of Chiapas, staged an armed up­ rising against the Mexican government. The Zapatistas demanded autonomy for the Maya communities of Chiapas as well as true democracy, liberty, and justice for all of the people of Mexico. After about two weeks of intense fighting, a ceasefire was established between the Mexican army and the EZLN. As the Zapatistas prepared for negotiations with the government, they continued to organize politically in the countryside and peacefully formed thirty-eight municipalities loyal to the EZLN. After a few preliminary attempts to initiate dialogue with the Mexican government early in 1994, the Zapatistas decided to break off all talks due to the increased militarization of the region by government troops and repression of people in Chiapas by the Mexican army. However, in December of 1994, the Zapatistas and the Mexican government agreed to a ceasefire (Paulson 2007, 1-2). But before negotiations could begin, in early 1995 the federal government unexpectedly broke the ceasefire and issued arrest warrants for the top leaders of the Zapatista movement. The Mexican army also launched a major military offensive against the Zapatistas and the Indigenous communities that supported them in Chiapas and surrounding Mexican states. The EZLN retreated into the mountains and thwarted the army’s attempts to arrest their leaders, but the army continued to harass Zapatista supporters while destroying and occupying their communities. The federal government managed to arrest several dozen EZLN supporters in Mexico City and other parts of the country. The government tortured them and accused them of terrorism because they were members of the Zapatista army. Nevertheless, the Mexican army’s attempt to undermine the Zapatista movement by capturing their leaders did not succeed (Paulson 2007, 2-3). Recognizing that the military operation against the Zapatistas had failed, the Mexican government decided to resume peace talks, cease military hostilities while the dialogue continued, and suspend the arrest warrants against the EZLN leadership. The Zapatistas accepted the return to dialogue, and a legislative commission was formed to oversee the negotiations. Representatives of the federal government and a delegation of Zapatistas met in San

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Andres, a Tzotzil Maya community north of the town of San Cristobal de las Casas. After months of negotiations, the discussions stalled over the insistence of the government that the EZLN’s influence and demands related to only four municipalities in Chiapas rather than the much more extensive area of Maya communities seeking autonomous governance. The EZLN decided to seek input from a broad sector of civil society in Mexico and invited many representatives of social, political, and economic organizations to participate in the dialogue with the government. Representatives of Indigenous groups throughout Mexico were also invited to join the discussions. By broadening the range of participants in the dialogue, the Zapatistas sought to extend discussions to include issues besides selfgovernance for Maya communities. They also wanted the federal government to implement wide-ranging democratic, judicial, and economic reforms affecting the whole of Mexican society. In particular, they wanted a national dialogue on the impact of economic globalization on poor communities throughout Mexico. In October 1995, negotiations were initiated on the issue of Indigenous rights and culture. By this time, the Mexican government was under great domestic and international pressure to show that progress was being made regarding demands that many people, both within and outside Mexico, felt were well justified. In less than two years, the Zapatistas had managed to garner substantial ideological support from many sectors of domestic and global civil society. Indeed, they had become powerful symbols of local resistance not only to national injustices but also to economic globalization. There were several factors that contributed to the remarkable domestic and international attention and impact of their movement: they did not seek to overthrow the Mexican government and obtain national political power, they firmly rejected violence against civilians, they were militarily weak but managed to thwart the Mexican army, and their communiqués were couched in poetic and symbolic language that fired the imaginations of leftists throughout the world. Eventually, agreement was reached on a set of constitutional reforms regarding Indigenous rights. The proposed reforms, known as the San Andres Accords, were extensive and, if actually implemented, would grant selfdetermination for Mexico’s Indigenous communities, including rights to implement their own forms of political, social, cultural, judicial, and economic governance. The agreement recognized Indigenous communities as distinct peoples who, where they constituted a majority within a municipality, would have the right to elect municipal authorities in accordance with Indigenous traditional practices and customs. Furthermore, Indigenous peoples were to have a major say in decisions concerning the use of land and natural resources within their territories and would be compensated for environmental damage done to their homelands (Paulson 2007, 3-5). These

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concessions, among many others, would in effect restructure the federal landscape of the Mexican government. The Zapatistas seemed to have persuaded government negotiators to grant Indigenous people major political, social, cultural, and economic reforms. The illusory nature of this “victory,” however, was soon made clear. When the San Andres Accords were discussed in Mexico’s legislative bodies, they were radically altered, and the rights of self-determination were weakened. Key terms of the agreements were changed, and the recognition of Indigenous groups as distinct peoples was rescinded. The government thus reneged on its promise not to alter the agreements but to confine itself to accepting or rejecting them. The Zapatistas rejected the government’s counterproposals and broke off talks. Currently, the Zapatistas have created autonomous municipal zones within Chiapas in which Indigenous people and campesino mestizos are exercising self-determination (Argenpress 2004). A fundamental point of contention between the government and the Zapatistas centred on the status of Maya Indigenous groups as a distinct people. The Maya in Mexico, whether they speak the Maya dialect Tojolabal, Tzotil, Lacandon, or Mam, see themselves as a people who share a common culture, history, religion, and self-identity. They live in their ancestral homelands and have genealogical ties with the groups who predated the arrival of European colonizers. In most cases, the Maya have maintained their distinctive forms of social, cultural, and political organization. They have also resisted assimilation into the dominant mestizo Mexican society and have struggled to retain their Maya dialects and cultural traditions. But perhaps most importantly, the Maya were forcibly incorporated into the Mexican state and thus lost the political, sociocultural, and economic autonomy they had formerly exercised. For these reasons, the Maya believe they have a legitimate claim for self-determination as a distinct people. Their claim for self-governance is strengthened by the fact that the Mexican government has practised pervasive and systematic discrimination against them. Many of the Maya in Mexico live in dire poverty and do not have basic amenities such as electric power or potable water, even though the state of Chiapas, where most of them live, provides the rest of Mexico with significant portions of hydroelectric power and valuable natural resources. Levels of education among the Maya are lower than in the rest of Mexico, and the quality of life in Chiapas is among the lowest in Mexico. Furthermore, the Mexican government tried to assimilate them into the dominant Mexican society through school curricula that focused on Spanish and neglected their native language and culture. In brief, the Maya claim that the discrimination and oppression they have experienced for many decades as part of Mexican society make it imperative for them to have self-governance in order to flourish as a people.

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The Mexican government, on the other hand, was very concerned that granting the Maya recognition as a distinct people with the right to selfdetermination would lead to fracturing of the Mexican polity and loss of control over important natural resources. The Maya are not the only Indigenous group in Mexico, and other groups, such as the Raramuri, the Zapotecs, and the Yaquis, might make similar demands, creating a crisis for the Mexican government. Even though Indigenous peoples in Mexico have always been perceived as different from the mestizo population and have experienced widespread discrimination since formation of the Mexican state, the government has nevertheless always seen them as Mexicans, that is, as members of a unitary political community. The Zapatista movement in effect challenged the assumption that the central state is the sole locus of sovereignty. Although other multinational governments have been able to recognize Indigenous people living within their boundaries as separate peoples, from the perspective of the Mexican government this position was out of the question. Another fundamental concern was that granting the Maya powers of self-governance would jeopardize the government’s access to the abundant and valuable natural resources of Chiapas. These practical concerns were probably the most important reasons why the Mexican government found it unfeasible to grant the Maya recognition as a distinct people. As mentioned above, a crucial breakdown in the negotiations occurred when the Mexican legislature altered key terms in the San Andres Accords. Government legislators changed the terms referring to Maya communities from entities with “public standing” (i.e., political bodies recognized as distinct) to entities of “public interest” (i.e., communities of general interest to the public). Although the former designation implies that Maya communities are distinctive political bodies within the Mexican polity, the latter merely recognizes that they are communities that evoke interest within Mexican society. These terms encapsulate the fundamentally different ways in which the Mexican government sees these communities and the ways in which they see themselves. Whereas the Maya see themselves as a distinct people with the right of self-governance, the government sees them as communities that, though different from the rest of Mexican society, are nevertheless members of the common demos constituting the Mexican state. The failure of negotiations between the Mexican government and the Maya-constituted Zapatista uprising seems to be due primarily to the fundamentally different power interests of the parties involved. However, in addition to these differences in economic and political interests, there is the normative incommensurability involved in the government’s refusal to recognize Maya communities as legitimate, independent loci of sovereignty. In comparison to the deep incommensurabilities found in the next case study, this form of incommensurability is relatively minor, but I believe that

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it nevertheless played a role in the negotiations. This normative incommensurability was not due to the inability of the government to understand the category of self-governing Indigenous communities; rather, it most likely involved a normative judgment regarding the political priority of maintaining the status quo over the right of these communities to self-governance. The failure of negotiations between the Zapatistas and the Mexican government shows that in some cases the combination of conflicting exigencies and incommensurable differences can make it difficult for parties to reach a mutually acceptable and fair agreement. It is also important to note in this case that even if both sides (particularly the government) had exhibited greater flexibility and willingness to compromise and had reached an agreement, it is not likely that this agreement would have been based on identical reasons. For instance, if the Zapatistas had posed a significant military threat to the government (which they never really did) and this threat had prompted the latter to grant them autonomy, this decision would likely not have been based on the view that the Maya are a distinct people with a right to self-governance. It is more probable that such a decision would have been based on strategic concerns such as security and an interest in survival. Contrary to what some advocates of deliberative democracy may hope for, in real-world negotiations it will not always be feasible for agreement to be based on mutually acceptable reasons. Despite this rather pessimistic assessment of the possibility of reaching agreement based on common reasons, it is possible that the political perspective of the Mexican government could evolve to the point of accepting Indigenous communities as distinct sources of sovereignty. After all, Canada (though arguably a more politically progressive country than Mexico) now allows Indigenous oral traditions to be used in courts of law to validate property claims. This represents an important change in the Canadian government’s epistemic procedure for justifying such claims. So we can imagine the political perspective of the Mexican government going through a similar transformative process. In the case study I consider next, however, the possibility of such a transformation is far more remote and illustrates the limits of the democratic deliberative ideal of resolving disagreements on the basis of common reasons. The next case involves deep incommensurability because the differences not only cover a wider range of framework components but are also more central to the cultural frameworks of the negotiators. Co-Managing Natural Resources with Indigenous Groups The second discussion of negotiations involving incommensurable differences deals with a report published by the Department of Indian and Northern Affairs of Canada (INAC) titled “Co-Managing Natural Resources with First Nations: Guidelines to Reaching Agreements and Making Them Work.”

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Created in 1966 by the Canadian government, INAC has the mandate to help implement Canada’s legal obligations to Aboriginal peoples arising from legislation, treaties, and the Indian Act. The functions of INAC include establishing a framework for the implementation of the Aboriginal right of self-governance, devolving power of program administration to Aboriginal groups, registering entitlement to Indian status, administering First Nations funds, and delivering basic services such as social assistance, education, and housing. The report, prepared by the Saskatchewan Indian Federated College and completed in 1996, focuses on the problems encountered in natural resource co-management agreements involving Aboriginals and other stakeholders. The goal of such agreements is to develop an institutional framework for the sustainable management and development of natural resources. Comanagement arrangements of this kind are increasingly popular as states recognize that multiple stakeholders have an interest in the use and sustainability of natural resource pools. Ideally, successful co-management arrangements are based on inclusive, fair, and enduring partnerships between the various parties involved, such as the state, Indigenous peoples, local communities, and industry representatives. As the report indicates, such enduring partnerships must recognize the various interests of the stakeholders as well as acknowledge the different knowledge bases they may employ for understanding the use of natural resources. In particular, it cannot be simply assumed that only technical experts of industry and the state have appropriate knowledge to deal with natural resource management. On the other hand, Indigenous people should also recognize that government and industry representatives work with very different conceptions of resource use and development. The report provides the following example of how scientific and Aboriginal knowledge bases concerning natural resources can differ: For many years, Aboriginal people were not recognized as having valid knowledge that was applicable to resource management. Management decisions were based on the data or “scientific” knowledge that government biologists supplied. This knowledge base did not meaningfully consider several factors, including the movements of animals, the interrelationships between animals and the land, reproductive cycles, and so on. In the area of forests, scientific knowledge was concerned with the different kinds of trees, their diseases, and re-planting trees that were taken by logging. It did not consider the relationship of people to the trees and the value of trees for things other than logging. This kind of knowledge also failed to consider the effects of logging on traditional Aboriginal ways of life, such as trapping and traplines. (Saskatchewan Indian Federated College 1996, 1)

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Also pointed out in the report are differences in conceptions of land ownership and the meaning of land. Aboriginals see the land not as a commodity that can be bought and sold but as something that should be cared for. They also see the land as closely tied to their daily practices, spiritual values and beliefs, and the fate of future generations. Animals are seen as having their own unique relationships to the land, people, and other animal species within an integrated living community (Saskatchewan Indian Federated College 1996, 2). Some of these relationships may even include connections of moral reciprocity. Aboriginals’ interest in sustainability involves not merely the subsistence of the natural ecosystem but also the preservation of a cultural and material mode of life based on the land. Management of the land and its natural resources is thus seen by Aboriginals as a holistic practice that should take into account both the material and the cultural dimensions of land use. By contrast, government negotiators generally see the land as owned by the state, which has the responsibility of managing it for the public good. The public good in this context is usually understood as access by the public to the land and its natural resources for purposes of consumption, recreation, or economic development. Moreover, the state is accountable, at least formally, to the various groups with an interest in the natural resources in question. The state must also function within the bounds set by existing legislation and government regulations. On the other hand, industry negotiators typically see the land as a “holding tank” for natural resources that can be used for profit-based consumption and development. Sustainability is understood in terms of the future availability of natural resources as a source of profit and not in terms of the preservation of the material base for a culturally distinctive way of life. The report’s authors focus on the practical issues and dilemmas that participants in co-management agreements are likely to encounter. Their goal is not to describe a theoretical framework for idealized deliberations between purely rational agents but to provide concrete guidelines for real-world negotiations between stakeholders who may have radically different beliefs, practices, values, and practical concerns. Drawing from extensive experience in actual cases of co-management negotiations, they identify the issues and obstacles that participants are likely to encounter in such negotiations. What recommendations does the report make regarding conflict resolution when participants have radically incommensurable points of view concerning the meaning and management of natural resources? And do these recommendations support or contradict the suggestions I have made regarding the implications of incommensurability in deliberation? The report makes three recommendations that are of particular importance for our purposes. First, it points out that negotiations are usually very

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effective when they emphasize the common interests of the participants. More specifically, effective co-management negotiations should focus not on perspectives or points of view but on interests. When negotiations involve parties with radically different points of view, as often happens in natural resource co-management negotiations, focusing on the perspectives of the participants can quickly lead to gridlock as the negotiators realize just how far apart they are in their fundamental assumptions concerning the subject at hand. To move forward, co-management negotiators should try to identify common interests, such as ensuring “that forestry is done sustainably, that animal stocks are maintained, that trappers do not lose their livelihoods, that the environment is protected, and that the resources remain for the use and enjoyment of future generations” (Saskatchewan Indian Federated College 1996, 3). The identification of these common interests then provides a basis for the negotiations to proceed. Second, the report recommends the formulation of appropriate compromises that respect and take into account the needs and interests of all participants (Saskatchewan Indian Federated College 1996, 4-5). It indicates that participants should accept that fair and effective co-management compromises are possible even when great differences exist in views concerning resource ownership and the meaning of the land. These compromises, however, will generally not be based on a convergence of beliefs or points of view but on an appeal to the interests, needs, and sense of prudence of the participants. That is, successful compromises recognize and respond to the needs and interests of the negotiators but do not require that they give up their perspectives or that they articulate and accept a shared, consistent position that underlies their common interests. Even though participants will likely modify their points of view as a result of the negotiations, they need not suppose that in order to reach a mutually acceptable compromise they must radically alter or abandon their original positions. Third, the authors of the report highlight the importance of mutual understanding. They state that the negotiators should strive to listen to one another and learn about each other’s perspectives (Saskatchewan Indian Federated College 1996, 1-3). They point out that it is often necessary to rely on a facilitator to further understanding and communication. Furthermore, there should be a commitment by all parties to familiarize themselves with the perspectives and interests of the others. Non-Aboriginals will often need cultural orientation on Aboriginal ways and should become knowledgeable in areas such as traditional and current conceptions of land usage and occupancy, spiritual dimensions of the land, interrelationships between individuals and their extended families, and holistic management. Aboriginals, because they have been forced to deal with state authorities and industry representatives, will probably be relatively more familiar with the values,

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practices, and interests of non-Aboriginals, but they should also make an effort to obtain a more thorough understanding of the standpoint of the other negotiators. It appears that these three recommendations conform to a remarkable degree with some of the observations I made earlier of deliberations involving agents with incommensurable perspectives. The first recommendation, which advocates focusing on interests and not perspectives, concurs with my view that agreements in cases involving radical incommensurability are not likely to be based on identical reasons. As I indicated, when there are radical differences in the beliefs, practices, and normative principles of negotiators, it is highly unrealistic to expect convergence of points of view. But this does not mean, as the authors of the report wisely recognize, that the parties may not have common interests, even though these interests may be based on very different reasons. All stakeholders might, for example, want to have sustainable forests, stable animal stocks, and clean water sources, but for different reasons. Aboriginals might see maintaining animal stocks as a way to preserve their traditional cultural relationship with an animal species, whereas state environmentalists might be concerned about maintaining species diversity. In short, this first recommendation conforms to my observation that reaching agreements between negotiators with incommensurable perspectives is sometimes possible but not on the basis of common reasons. The second recommendation of the report, which advocates reaching compromises based on common interests, also conforms to my earlier observation that even though agreements in cases involving deep incommensurability are sometimes possible, they will likely be based on objectives of strategic reasoning such as prudence and self-interest and not on reasons acceptable from the standpoint of all negotiators. The observation that compromises based on the prudence and self-interest of the participants are the best we can hope for in cases involving deep incommensurability is a disturbing result to some advocates of deliberative democracy because, presumably, one of the distinctive features of the latter is that it is essentially different from bargaining in politics or in the marketplace. But if the report’s recommendations and the arguments I have presented are correct, then democratic deliberation across deep differences is more akin to political or economic bargaining than to a discursive procedure guided by the rational search for a common basis of agreement. Under these circumstances, power inequalities are more likely to play a prominent role in negotiations (Williams 2000). Identifying mutually acceptable reasons as a basis for compromise will not work, for the authors of the report acknowledge that, in the cases at hand, no such reasons are available. In turning away from common reasons and moving toward common interests, a basic principle of some versions of deliberative democracy has been abandoned, namely, the search for a

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shared, rational basis for agreement or consensus. It may not even be wise, in cases involving deep incommensurability, to use the objective of finding common reasons as a regulative ideal; as the authors of the report indicate, doing so would be counterproductive and lead to gridlock. In earlier comments concerning the understanding of cultural perspectives that are radically different from ours, I emphasized familiarization rather than translation as the appropriate procedure for understanding them. The report’s third recommendation echoes my emphasis on familiarization when it notes the importance of understanding the cultural perspectives of the other negotiators. The report states that mutual respect is crucial for successful negotiations in co-management arrangements and that such respect should be grounded in understanding. This is eminently sensible because respect in these contexts may seem contrived and formalistic if it is not based on knowledge of why the participants hold the values, implement the practices, and have the beliefs they do. This second case involves at least normative, categorical, and epistemic incommensurability. Normative incommensurability in this case applied to differences in value judgments regarding the natural world. Whereas Aboriginals in this context believed that the land had spiritual significance and that they had moral responsibilities to the non-human members of an interspecies natural community, the other negotiators did not recognize such moral relations and sentiments. Categorical incommensurability applied to differences in the ontological constitution of natural entities; whereas Aboriginal groups saw animals and plants as animated, for those adhering to Western perspectives only humans have souls. Finally, epistemic incommensurability applied to fundamental differences in the knowledge bases used by some of the negotiators. The Indigenous knowledge base is generally embodied, practical, implicit, and grounded in local contexts, whereas in Western societies the scientific knowledge base is abstract, analytical, quantitatively oriented, and not attached to social or ecological contexts. Moreover, the framework differences here are deep in the sense that they are pervasive and central to the frameworks involved. The framework components that give rise to the incommensurabilities are, at least in the case of the Indigenous groups, central to the identities of the groups involved. Given their depth and importance, it is unlikely that these framework components will change or be relinquished by group members as a result of deliberations. The Institutional Implications of Incommensurability How should a society committed to the ideals of deliberative democracy respond to the existence of radical incommensurability? If it is no longer feasible to understand radically different cultural worldviews by translating their components into our own, then we should place a greater premium

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on familiarizing ourselves with these worldviews. The same could be said, of course, for the members of other cultural groups since their epistemic positions are symmetrical to ours: there should be a mutual commitment to understand others in their own terms. Moreover, since we are obviously not interested in just any interpretation of their worldviews but in a correct one, it is reasonable to rely on those whom we are trying to understand to verify the correctness of our interpretations. If we need to rely on others to verify that our interpretations of their values, claims, epistemic procedures, and so forth are correct, then the proper epistemic position to adopt is that of reciprocal validation. We cannot objectify others and independently reconstruct their worldviews on our terms; rather, to understand them, we need to enter into their worlds, as it were, and seek confirmation of our interpretations, for they are the best and most reliable sources of knowledge concerning the correctness of our understanding of their worldviews. This does not mean that they have infallible or complete knowledge of their own worldviews – for cultural constructs are themselves subject to internal contestations by cultural group members, and some aspects of their own worldviews may not be transparent to them – but it does mean that we should at least presume that they have the best overall understanding of the features of their worldviews. Because reciprocal validation involves the deliberators’ familiarization with one another’s cultural worldviews, a society that advocates intercultural understanding and deliberative democracy should commit itself to multicultural education. Although multicultural education would not be sufficient, of course, for dealing with the problems encountered in deliberations involving deep incommensurability, it would help ameliorate them.7 The commitment to multicultural education should be both extensive and institutionally grounded. It should be extensive, reaching into many levels of the educational system and public life, because it is unlikely that the goals of intercultural understanding can be attained exclusively in forums of public deliberation. Since the involvement of most people with forums of public deliberation would be intermittent and short term, it would be difficult in these contexts to achieve a complex educational objective such as in-depth knowledge of other cultures. It is unrealistic to expect that most members of a political community would spend sufficient time in public deliberation to both deliberate about issues of common concern and attain the background knowledge and understanding necessary for fruitful intercultural dialogue. Forums of public deliberation would also likely not have sufficient regularity or structure to achieve the goal of expanding people’s perspectives concerning other cultures. For these reasons, multicultural education should be an important part of a society’s general educational objectives. Two particularly important objectives in multicultural education are developing the empathetic imagination of the citizenry and imparting historical knowledge

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of the modes of incorporation into the state of ethnocultural minorities. The first objective would promote deeper mutual understanding, whereas the second would help the dominant society comprehend the rationale behind demands for self-determination made by some ethnocultural groups.8 It has been suggested that the proper site for promoting multicultural understanding is the civil sphere (Benhabib 2002, 112-22). This sociocultural domain, which consists of a broad range of voluntary associations and sites for civic interaction, would seem an appropriate context for members from different cultural groups to interact and familiarize themselves with one another’s cultural perspectives. By learning to cooperate with one another on voluntary projects of common concern, the members of different cultural groups could develop civic virtues such as the capacity to understand the needs and rights of others, a willingness for deliberation and mutual compromise, and a commitment to civic reciprocity and social solidarity. Cultivating the enlarged civic mentality important for democratic citizenship would pave the way for understanding the perspectives of the members of other cultural groups. By encouraging self-directed civic interactions among its members, a society could promote not only the virtues and skills of democratic citizenship but also the goal of intercultural understanding. Even though I believe that a strong and active civil sphere is of great importance for flourishing multicultural democracies, I do not believe that it should take the place of a publicly supported, institutionally based commitment by the society to promote multicultural education. Because multicultural education is important for intercultural understanding, and because the latter is in turn crucial for promoting just outcomes in deliberation, a culturally diverse society committed to deliberative democracy should make multicultural education a requirement at different levels of its educational system. Multicultural education should be seen not as a radical demand by disenchanted minorities but as an essential objective for just multicultural democracies. Moreover, there are reasons to think that voluntary associations would not suffice to achieve intercultural understanding. Perhaps the greatest strength of civil society is its self-directed, self-organizing, voluntary character. But it is precisely this characteristic that makes it unlikely that intensive and widespread intercultural interactions and associations will spontaneously occur within the civil sphere. Most people who participate in voluntary associations and organizations join groups consisting of individuals who share their background, ethnicity, religion, values, interests, political objectives, and so forth. For the most part, citizens associate with those with whom they agree, identify, and feel comfortable. Although there are exceptions, and voluntary associations exist in which the members of different cultural groups participate, those who participate in these associations do not generally do so with the primary objective of achieving intercultural understanding.

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Conclusion I argued in this chapter that deep incommensurability between cultural perspectives undermines what some advocates of deliberative democracy take as a central tenet, namely, that deliberation is a dialogical procedure that aims at reasoned agreement based on mutually acceptable reasons. I raised theoretical concerns about the soundness of this tenet and then further corroborated my concerns with an examination of concrete cases of negotiations involving incommensurability. I concluded by maintaining that acceptable compromises can be reached even in cases involving radical incommensurability if the focus is shifted from the excessively strong epistemological requirement that agreement be based on common reasons to the more realistic condition that it be based on common interests. An institutional commitment to multicultural education would help the members of a society arrive at such acceptable compromises by deepening mutual understanding and respect between the members of different cultural groups.













Notes 1 Many prominent advocates of deliberative democracy would agree with the characterization of deliberative democracy as a dialogical process in which one should provide mutually acceptable or common reasons for legitimate democratic decisions (see Benhabib 1996, 71-72; Cohen 1996, 99-100; Gutmann and Thompson 1996, Chapter 2; and Habermas 1996). 2 Actually, cultural frameworks can differ in other ways. However, for my purposes in this chapter and for the sake of simplicity, it is not necessary that we recognize the other ways in which cultural frameworks can differ. I understand conceptual frameworks to be cognitive structures that people employ to organize their experiences of the world and that include as basic components categories, beliefs, epistemic strategies, metaphors, and affective orientations. 3 This is not to imply that all English speakers share the same cultural worldview or framework. It is a major error to assume, as authors such as Donald Davidson (1984) have done, that a language is equivalent to a cultural worldview, since English speakers, for example, can hold significantly different views of the world. 4 Languages such as modern Spanish, French, or English are “cosmopolitan” languages because, in their evolutionary development, they have drawn ideas and categories from diverse and sometimes conflicting sources. These cosmopolitan languages contrast with languages that have developed in relative geographical isolation and have drawn less from other cultural traditions. A feature of cosmopolitan languages is that they are capable of expressing a wider range of conceptual themes, some of which may not even be consistent with one another. This difference in expressive capacity between cosmopolitan and “isolated” languages potentially presents a problem for global cross-cultural democratic deliberation. 5 Most or all cases of incommensurability likely involve partial incommensurability because the languages of all cultural groups probably include “basic categories” that, for instance, draw distinctions between the edible and the inedible, humans and animals, plants and animals, and so forth. 6 I do not think that the meaning holism thesis stands up to either theoretical scrutiny or the evidence of practical experience. At the theoretical level, it can be reasonably maintained that the meanings of terms in a framework are determined not only by their relations to the other terms in the framework but also by extralinguistic references. The empirical access that we all have to external objects suggests that we can become familiar with such objects and with the linguistic terms used to refer to them, thus allowing us to learn the meanings of the terms of a cultural framework. At the level of practical experience, many people have

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learned foreign languages and cultures by being immersed in them while retaining their own culture and language. Moreover, some people are “natively” bilingual or bicultural, having grown up simultaneously exposed to two languages or cultures. People in these latter categories would certainly be capable of understanding, comparing, or critiquing the components of a cultural framework from the “outside,” thus undermining the meaning holism claim that the components of a framework can only be understood and critiqued from within the perspective of the framework itself. 7 The topic of multicultural education is complex and broad in scope. For a brief indication of the features this form of education would have for a society committed to democratic deliberation, see Valadez (2001, 93-97). 8 Multicultural education is particularly important for promoting the understanding of autonomist and secessionist groups – ethnocultural groups that seek or have attained varying degrees of self-governance. It is crucial for the majority society in a pluralist state to understand these groups, such as indigenous peoples and ethnonationalists, because their cultural identities are typically more different from and more deeply entrenched than those of accommodationist groups, such as US Latinos, who are more fully integrated into the majority society. Multicultural education, even though it should also involve accommodationist groups, is most important for promoting the understanding of those ethnocultural groups with whom the majority society is likely to have the deepest and most intractable disagreements. For a fuller discussion of the complex issues that arise in different kinds of multicultural societies populated by diverse kinds of ethnocultural groups, see Valadez (2001).



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Part 4 Citizen Dialogue and Decision Making in a Deliberative Democracy

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9 Public Opinion and Popular Will Henry S. Richardson

Power tends to corrupt and absolute power corrupts absolutely.

– Lord Acton

In this chapter, the target of my criticism is the thought, latent if not explicit in the work of James Fishkin and others, that the proper way to conceive of the will of the people for the purposes of normative democratic theory is to ask: Which conclusions would the people reach if they were better informed about the issues and had the opportunity and motivation seriously to debate and discuss them?1 I will call this the Counterfactual Question. The point of addressing this question is not predictive but prescriptive. “It has a recommending force,” as Fishkin puts it (1997, 162). There is an unobjectionable and modest way of conceiving of its normative force and an objectionable and ambitious one. Fishkin is explicitly committed to the unobjectionable and relatively modest claim that, on a given policy question that arises (in, we presume, a legitimate political setting), his Deliberative Polls provide more normatively significant information than do ordinary opinion polls.2 I have no quarrel with this relatively modest claim. Latent in some of Fishkin’s writings, however, is a stronger and more ambitious claim, to the effect that the Counterfactual Question provides a way of conceiving of the will of the people and that, correspondingly, Deliberative Polls provide a way of getting at the content of the will of the people. This is to think of the Counterfactual Question as having fundamental normative importance. I am not certain whether Fishkin is really committed to this more ambitious claim, but no matter. It is this claim I am out to attack, not Fishkin himself. Indeed, by driving a wedge between Fishkin’s modest and explicit normative claims for the Counterfactual Question and the Deliberative Polls that answer it, on the one hand, and an implausibly strong normative claim for them, on the other, I am protecting

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the sensible core of Fishkin’s view against potential misuse. Those who would misuse it in this way include anyone tempted to think that ordinary opinion polls give us a picture of the people’s will. I have chosen Lord Acton’s famous dictum as my epigraph for two reasons. First, a principal problem with giving fundamental normative importance to the Counterfactual Question is that it allows a kind of corruption to go unaddressed. As we will see, the relevant kind of corruption is not captured by Acton’s dictum. Second, considering Acton’s broader political view, a version of classical republicanism, will help us understand the kind of institutional background necessary to make sense of the Counterfactual Question. In its background, I will suggest, lies an overly simple conception of the role of republican institutions for contesting and checking power. If Acton’s dictum were the whole truth, then these institutions would be enough to dampen political corruption; however, Acton was no democrat, and it will turn out that avoiding political corruption in a democracy is a more difficult and demanding enterprise than this one-sided view allows. In a nutshell, to avoid political corruption, we must not merely check the power of officials but also empower citizens. The fact that avoiding corruption has these two sides is one important reason why the Counterfactual Question cannot serve as a fundamental normative basis for conceiving of the will of the people. Corruption undermines the integrity of the political process. The type of corruption Acton’s dictum captures is the covert abuse by political officials of the powers entrusted to them. Since these abuses are covert, they will involve insincerity or hypocrisy in the way that officials carry out these powers, as when an official lauds the merits of a policy he is bribed to support. Bernard Williams (2002, Chapter 9) built a powerful and nuanced case against hypocrisy and insincerity in government. He did so on the basis of a broader understanding of the value of sincerity, from which I want to draw a point of cardinal importance: that our dispositions in general and our wishes in particular need to be subjected to “the disciplines of truth” (140). Building on this observation, I will argue that Acton’s dictum leaves out a second form of political corruption, for Acton neglects the importance of applying the disciplines of truth to the citizens in their political interactions. Ironically, this second form of corruption was well understood by many classical republicans, who saw it as the obverse of crucial civic virtues. Acton, however, was seemingly too much of an elitist to worry about the civic virtues of the populace. By connecting this republican theme of the corruption of the citizenry to the idea of Deliberative Polls, I will suggest that Acton’s mistake is not simply a quaint one; rather, it is an ongoing and influential one – again, regardless of whether it is also Fishkin’s. It has a firm grip on conceptions of politics that seem content to encourage citizens to express their political wishes in

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inadequately disciplined ways – ways inadequately susceptible to the virtuous influences of either mutual respect or the capacity for shame in the face of oneself and others that comes with the possibility of hypocrisy. Deliberative Polling In “Ethical Consistency,” first published in 1973, Williams (1987, 119) developed the contrast between conflicting desires and conflicting beliefs as follows: “If I discover that two of my beliefs conflict, at least one of them, by that very fact, will tend to be weakened; but the discovery that two desires conflict has no tendency, in itself, to weaken either of them.” As we might rephrase the point, making it less absolute, the requirements of coherence to which desires are subject are considerably weaker than those to which beliefs are subject. Beliefs are clearly subject to the disciplines of truth and to the requirements of sincerity, but are desires? This is not at all clear. We do not need to settle this question about desires, however, for the view that would promote the Counterfactual Question to fundamental status effectively works with an even laxer psychological category, that of wish. Desire at least can be what Aristotle (1984) referred to as “deliberative desire” (prohairesis), which has been somewhat subjected to the disciplines of the possible. Mere wish, by contrast, need not reflect any such discipline. As Fontane (2001, 157; my translation) put it in Effi Briest, “Thoughts and wishes are toll-free.” Wish may wholly lack the discipline of consistency and choice. My contention is that to give the Counterfactual Question, and the Deliberative Polls that aim to answer it, fundamental normative importance is effectively to take mere wish to be the central psychological category. In Fishkin’s trademarked realization of the Deliberative Poll, randomly selected groups of citizens are gathered for a day or two of discussion. The random selection is important so that one might generalize from their conclusions an answer to the Counterfactual Question, which asks about all citizens. The groups are provided with briefing books and expert talks and given opportunities to discuss matters among themselves. Fishkin administers questionnaires – one before the meeting and one at the end of it. The first such meeting to be nationally televised was held in 1994 in Manchester, England, where the issue discussed was how to respond to rising crime. As later analyzed by Fishkin and his colleagues, this discussion led to a reduced willingness to impose harsh prison sentences, a stronger commitment to the importance of defendants’ procedural rights, and a diminished tendency to want to fight crime simply by adding more police officers (Luskin, Fishkin, and Jowell 2002). Now, my taking Deliberative Polls as an example of giving too much sway to mere wish will take some explaining. After all, since the whole point of these exercises is to be “deliberative,” in some sense, one might think that they should be recognized as being disciplined in the way that Aristotle’s

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“deliberative desire” is. In explaining why this is not so, I will proceed indirectly. Before I go on, though, I should point out that these so-called Deliberative Polls are indeed, as Fishkin amply demonstrates, normatively superior in many respects to plain old random-sampling polls. Providing information and affording opportunity for discussion do indeed improve things. This is the relatively unobjectionable claim I flagged at the outset. Fishkin’s work provides an ample body of empirical evidence to back it up. Once we shift to the more ambitious task of generating a normative conception of the will of the people, however, what looms as troubling is the whole idea of a poll, whether thus enhanced or not. Because even Deliberative Polls give too much sway to mere wish, they leave too much room for corruption of the kind that the classical republicans worried about – for views undisciplined by the virtues essential to a reasonable and rational citizenry.3 This worry about corruption will turn out to be a corollary of a more general obstacle to giving the Counterfactual Question a fundamental normative role, namely, that so doing presupposes an overly simple conception of how to divide our democratic labour. The Traditional Republican Division of Labour We need to step back and consider the broader conception of politics that gives the Counterfactual Question its home. Democratic politics must find some way to combine mechanisms for limiting and channelling power with mechanisms allowing for deliberation. There are different ways of conceiving of this combination. Strikingly, in asking about what “the people would think,” the Counterfactual Question completely abstracts from the existence of political power. That fact by itself is enough to indicate that it is not a sufficient normative basis for politics. A normative basis for politics that abstracts from power would be absurd. What well-informed people living under a totalitarian regime would think is surely not a good touchstone of anything. Because it must truck in political power, democratic deliberation is always in danger of being distorted by it. No one, not even Habermas, thinks that politics can proceed solely on the basis of the proverbially forceless force of the better argument, for politics inescapably involves jockeying for power (Habermas 1998; see also Fishkin 1997, 41). And presumably no one, not even Fishkin in his more ambitious moods, has ever asserted that the Counterfactual Question is a sufficient normative basis for politics. My conjecture is that Fishkin asserts the Counterfactual Question’s normative significance – sometimes hinting at its fundamental normative significance – against a presumed background of republican institutions.4 As classical republicans insisted, a constitutional scheme must exist that addresses the element of power by dividing and checking it and by instituting mechanisms for quelling faction and instability. Within the secure bounds

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set by such a constitutional scheme, the people can deliberate about what they want. To avoid the absurdity that would come from modelling democratic deliberation in a way that wholly ignores power, we need some such conjecture. This conjecture allows me to frame a two-step division of labour in which the Counterfactual Question plays a fundamental though not normatively self-sufficient role. The first step is constitutional and implements republican ideas about checking and dividing power, whereas the second step is deliberative and invokes the Counterfactual Question. The constitutional layer draws inspiration from the great republican thinkers and lawgivers of ancient Rome – as updated, say, by the Magna Carta and the American founders. Republican constitutionalism counsels dividing powers against each other and providing opportunities for citizens to contest political results. By checking and limiting power, republican institutions limit the possibility of official corruption. Furthermore, since republican devices of contestatory democracy cannot succeed unless the public is correctly informed about what the government is up to, governmental sincerity is essential.5 This is the aspect of political truthfulness on which Williams focused his attention. More generally, on this aspect of the republican picture, the crucial forms of corruption are those that prevent the republican institutions from well serving their power-checking and power-contesting functions. As Acton puts it, absolute, or wholly unchecked power, is thus thoroughly corrupt. Acton was a conservative republican, uninterested in popular governance; hence, his republicanism and his conception of corruption stop here. For those more truly interested in democracy, however, establishing secure republican institutions is just a first step.6 The second step is to find a way, within this secure republican framework, for the people to speak. In Fishkin’s version of the tale, it is Acton’s contemporary Viscount Bryce who, in The American Commonwealth (1888), characterized the needed democratic supplement to republican institutions. Assuming that a republican framework of background contestatory institutions is in place to do its checking and balancing, the hope is that those within these institutions will be guided by public opinion. Bryce characterized the paramount influence of public opinion within such a background framework as the distinctive mark of US democracy: “Towering over Presidents and State governors, over Congress and State legislatures, over conventions and the vast machinery of party, public opinion stands out, in the United States, as the great source of power, the master of servants who tremble before it” (quoted in Fishkin 1997, 73). Against the backdrop of the republican institutions handling the task of setting faction against faction and otherwise dampening struggles for power, public opinion, it might be hoped, may come to approximate in this constrained way the Habermasian ideal in which no force is exerted except the forceless force of the better argument.

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According to this two-step division of labour, then, the official institutions of government have primarily the republican functions of checking power and providing mechanisms for contesting uses of power, whereas the public, which is conceived of as finding its voice independently of these institutions, does the contesting. For Acton, the public’s voice is merely useful in checking power, whereas for Bryce and Fishkin its expression is paramount. But how can public opinion come to be expressed outside the institutions of government? As Jacques Derrida (1992, 87) rightly notes, “Public opinion ... does not speak in the first person ... One cites it, one makes it speak, ventriloquizes it.”7 Fishkin (1997, 77) credits George Gallup’s pioneering use of the random-sample opinion poll as creating the first reliable means by which information about public opinion can become continuously available. In Fishkin’s view, however, ordinary opinion polls suffer from a fatal flaw. They fail to overcome individuals’ rational incentive – which, on the analysis of Anthony Downs’s Economic Theory of Democracy, inevitably arises given the negligible influence of any one voter on the collective outcome – to remain vastly ignorant about most political issues (1957, 21). The idea behind Fishkin’s Deliberative Polls is to combine the representativeness that comes from random sampling with means of briefing the participants and of allowing them occasion to discuss matters with one another to rectify this defect of ordinary polls. “The Deliberative Poll ... attempts to fulfill Gallup’s initial aspiration to somehow adapt the New England town meeting, the image of serious face-to-face democracy, to the large nation-state. In doing so it purports to overcome rational ignorance and represent us all” (Fishkin 1997, 175). Power will be handled in good, republican fashion; against that secure backdrop, Deliberative Polls will enable us to answer the Counterfactual Question. In these circumstances, unlike in totalitarian circumstances, the Counterfactual Question will retain significant recommending force. The trouble with this vision – to preview my main line of argument – is that democratic deliberation cannot meaningfully be separated from the structures of collective empowerment. Republican structures that do not work to articulate the voice of the people are not democratic, and opinion voiced independently of those structures is not the voice of the people. It is essential to New England town meetings that they are more than debating societies: they are empowered to make decisions for their townships. The connection to wish will be this: in practical contexts, being subject to the disciplines of truth depends on having power – specifically on having a given range of options within one’s power. To give a fundamental role to the Counterfactual Question in the way made conceivable by the traditional republican division of labour, however, is to attempt to conceive of the popular will as arising in abstraction from popular empowerment. So to think of the popular will is really to think of it as the people’s wishes. To show that this is a serious mistake, I will need to point out how the two-step

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division of labour just sketched continues to abstract from questions of power in a way that seriously distorts reality. In fact, there is never a stage at which power relations are irrelevant to how we must conceive of democratic deliberation. The Will of the People: A Lesson from Arrow’s Theorem To introduce the difficulty with conceiving of the people’s will as the twostage republican division of labour would have us do, let me start by briefly considering a view as one-sidedly populist as Acton’s view was one-sidedly republican. This one-sided populism takes to the limit the kind of view articulated by Bryce, who, as Fishkin tells us, foresaw US democracy as eventually reaching a stage in which “the sway of public opinion would have become more complete, because more continuous.” This stage “would be reached if the will of the majority of the citizens were to become ascertainable at all times, and without the need of its passing through a body of representatives, possibly even without the need of voting machinery at all” (quoted in Fishkin 1997, 73). On a radical populist view, one need only appeal to the will of the people. Their will about what? It is the agenda-setting problem that, more graphically than anything else, dramatizes the incoherence of this bootstrapping sort of populist democracy, for at some point one will encounter the need for a constitution.8 Before there can be any democratic control over anything, there must exist democratic institutions for which issues can arise and be answered. Furthermore, for such institutions to have any effectiveness at all implies that some items, such as the whimsical dissolution of the polity, must be off the agenda. In short, there cannot be any democratic control of anything until there is first an institution with a limited agenda. A populism as one-sided as Acton’s undemocratic republicanism is equally unacceptable. This reminder of a familiar point about constitutions also contains a more general lesson, namely, that expressions of a democratic will always depend on some institutional substrate. Some recent critics of populist democracy have attempted to turn this fact, which emerges clearly from the incoherence of a radical and totalizing populism, into a critique of populism as such. Here, I am thinking especially of William Riker’s Liberalism against Populism (1988). Riker was particularly impressed by Kenneth Arrow’s impossibility theorem in social choice theory. Arrow’s result tends to show that there is no rationally acceptable way to conceptually construct a social preference out of a list of individual preferences. Retaining the assumption that the popular will must be conceptually constructed out of a list of individual preferences, Riker is understandably pessimistic about the prospects of a populism so understood. But to reject populism on these grounds is to let a philosophical dogma unduly constrain one’s political ideals. What Arrow’s theorem clinches is rather the conclusion that we must not conceive of the

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will of the people as conceptually constructed just out of lists of individual preferences. There are various modes of escaping the impossibility that Arrow located, but all of them, explicitly or implicitly, lean on how deliberation is actually institutionalized.9 What we ought to conclude is that actual institutions, and actual occasions for deliberation, are essential constituents of the concept of the popular will. To give a fundamental role to the Counterfactual Question is to ignore this lesson. The Counterfactual Question has us think of the popular will as if it could be abstracted from the actual institutions wherein people are empowered to influence governmental decisions. “What would the people think?” it asks, abstracting from the institutional setting in which the people are thinking it. But the point clinched by Arrow is that, outside institutional settings, the people cannot coherently be conceived of as thinking anything. This is not to say, of course, that results of Deliberative Polls cannot be generated. They are, so they can be. The issue here is not about whether voting cycles will block some coherent result or other from being generated. The question, rather, is this: On what basis can any collection of individuals’ preferences be taken to state the people’s will? If we take just the set of preferences, then there are many different ways of aggregating them, yielding different results. If we pick some privileged function of those preferences, such as straight majority rule, then Arrow forces us to ask, why that function? That the preferences result from a relatively informed and deliberative setting does not affect these conceptual problems about taking sets of preferences to express the popular will. The issue of setting the agenda gives us a way to make this conclusion less theoretical. A Deliberative Poll can get at what people would think on a given question if well informed, but where did the question come from? If the question is framed by elites with a restrictive conception of the viable options, then this deliberative poll will tell us little of value about the popular will. Fishkin does not deny this, and the unobjectionable and modest version of his normative thesis is perfectly compatible with simply supposing that one is dealing with a legitimately generated agenda item. However, we should at least pause over the point to notice how deep the issue of agenda setting goes. For a coherent popular will to be generated, actual institutions must control the shaping of the agenda. Abstracting from this embodied aspect of democratic power leaves the Counterfactual Question democratically unmoored. Can the defender of a fundamental normative role for the Counterfactual Question address this problem simply by mooring it in an understanding of the political context of the questions that are posed? No, for the Counterfactual Question’s problem of abstraction goes deeper than that. In setting up a standard that abstracts from actual institutions of democratic governance, it also deprives itself of an indispensable mode of dividing our collective

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deliberative labour and of the disciplines of truth that come together with empowerment. For these reasons, as I will now argue, the mechanisms of Deliberative Polls are not conceptually adequate means of embodying the popular will. Pace Bryce, if we are hoping to analyze the will of the people, then there is no substitute for giving a constitutive role (though not necessarily a monopoly) to a body of representatives with its attendant voting machinery.10 The Pragmatic Need for a Stepwise Division of Labour According to a radical populism, the division of democracy’s labour is supremely simple: the people speak, and the government serves to put their decisions into effect. In addition to forgetting that the people cannot coherently speak without the help of democratic institutions, this view underestimates the practical difficulty of arriving at collective decisions on complex issues. Difficulties that stem from complexity and from disagreement often require, as a practical matter, a multi-stage approach. It is not just that institutions need to set agendas: it is also that agendas systematically unfold in a stepwise fashion. Understanding the pragmatic reasons for this is crucial to seeing the seriousness of the conceptual obstacles to giving the Counterfactual Question a fundamental normative role. As a schematic example of a multi-stage approach, consider the case of US regulation of air pollution. It is hard to pinpoint the beginning of airquality regulation in the United States, but the story I tell is, indeed, schematic in this way among others. Still, it is fair to say that, in the late 1960s, the view was developed by citizens, operating in what Habermas calls “the informal public sphere,” that air pollution needed to be addressed by the federal government.11 Pressure was subsequently put on Congress, which passed a Clean Air Act in 1970. Pollution opponents became convinced that the law needed beefing up, and polluters found they had difficulty meeting even the relatively modest standards of the initial act. Consequently, the Clean Air Act Amendments of 1977 had to forge anew a compromise between industrial interests, which sought postponements of air-quality targets, and environmentalists, who sought stricter targets. Among the amendments’ new teeth was a powerful but protean “non-degradation” provision, which demanded that air quality not be allowed to degrade. What “non-degradation” should and would be taken to mean, in turn, had to be hammered out region by region and pollutant by pollutant in a process of further policy making that took years. In short, popular pressure gave rise to an initial statutory framework that then needed revision; detailed regulations then needed to be written to implement this revised framework. This schematic example well illustrates the two main reasons that a multistage approach to policy problems is indispensable. First, the scale and complexity of the US air pollution problem is obviously enormous: millions

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of pollution sources, thousands of distinct pollutants, thousands of jurisdictions. With respect to each source, pollutant, and jurisdiction, one might have contemplated radically different legislative approaches, from mandatory targets and penalties to subsidies and technological fixes. Correspondingly, the options for coping with the problem are innumerable. The only reasonable way to address the problem was to try to agree, first, on a broad approach to take – subject, of course, to adjustments, as the actual approach was. Second, these matters were the focus of sharply conflicting views and interests. There would have been no point in considering detailed strategies for implementing an approach that could not command sufficient support to be enacted. Accordingly, the other reason to start by working out the broad approach was to enable compromise.12 Once an initial approach is agreed to, further compromises can be forged in working out how to implement it. There is always the danger, of course, that these subsequent compromises will vitiate the one they are supposedly implementing; the practical, diachronic consistency of the collective is itself a complex matter. Given the pragmatic necessity of this kind of multi-stage decision making in a modern state, the two-stage division of labour, according to which republican institutions do the job of checking and dispersing power and the Counterfactual Question comes in to cue the popular will, loses its remaining plausibility. Consider an instance of the question that asks what the people would think about a non-degradation standard pertaining to sulphur dioxide concentrations in Kentucky. As a question addressed to implementing the actual Clean Air Act Amendments of 1977, this has clear normative relevance, but in the absence of that prior democratic decision, asked completely de novo, it is not only irrelevant but also bizarre. We have seen that public opinion does not speak in its own voice; however, waiving that difficulty, perhaps it has unmediated influence on an initial stage of official decision. When a complex and controversial issue is at stake, however, that initial official decision will in turn need to become the focus of further public debate and input, which in turn influence more detailed official decisions – and so on through multiple stages. Each layer of official decision is not independent one from the next; rather, each one is nested within the one that came before. Hence, even if the people could speak extra-institutionally, a four- or six-stage division of labour would be required. This lack of independence of one stage from the next is not simply a practical matter: it is also of great normative importance. If the higher-level decisions are wrong, or fail to reflect the will of the people, then what the people would say about the lower-level decisions is of questionable normative relevance. Consider an example from the Vietnam War. President Johnson decided to commit serious numbers of American troops to that war. Because the North Vietnamese and the Viet Cong proved to be far tougher adversaries than the US administration had anticipated, US military strategists cast about

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for ways to weaken their foes. The Pentagon decided that what the United States needed to do was to cut off the supply of arms coming to the Viet Cong along the Ho Chi Minh Trail, which ran partly through Cambodia. So the United States faced this question: Should we bomb the trail in Cambodia? At this point, one could have turned to a Deliberative Poll to address the question “what would the people think about cutting the Ho Chi Minh Trail by bombing Cambodia if they were well informed and had a chance to discuss and debate the question?” And the answer would have been interesting. The present point, however, is that, whatever the answer would have been, it would have had little bearing on the will of the people. Their will – as subsequently became plain – was, on balance, against the whole idea of the Vietnam War. So posing this question to the people is like saying, “Given that I’m going to steal your car radio, would you prefer that I break the window or force the lock?” One can get an answer, but the answer fails to indicate what is normatively fundamental in the situation. Accordingly, though the pragmatic considerations show that multi-stage decision making is indispensable, this kind of normative dependence of later stages on earlier ones shows that the Counterfactual Question is miscast if it is put forward as indicating a fundamental normative standard for politics. The normative significance of questions about what the citizenry would think about an issue is conditioned by what the people, via their elected representatives, have actually decided about an issue. Hence, far from articulating a fundamental normative standard, the Counterfactual Question is a handmaiden to an actual, legitimate process of democratic government. Our final question is thus whether Deliberative Polls are well suited to this capacity as handmaiden. Well enough to be taken into service, perhaps, but they are too tolerant of civic corruption to serve as principal normative valet or lady-in-waiting to a legitimate democratic process. Deliberative Polls Get at Mere Wishes What limits the aptness of Deliberative Polls even in the assistive capacity of illuminating questions arising at one stage or other in a complex policymaking process is that they lack the in-built disciplines of joint agency. Policy questions are questions about what we ought to do. (This is more a formal claim than a substantive one. We might decide, for instance, that what we ought to do is to privatize the police.) As I will explain, having to decide what we ought to do puts people under strong forms of rational discipline. Deliberative Polls lack the two essential features of joint agency: no joint decision is elicited; even if it were, the participants are not empowered to act jointly within the policy-making process. Although analytically separable, these two features tend to go together in a political setting. Friends often decide things jointly without depending on the existence of any norm or convention that empowers them to do so. In politics, however, where

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interests divide people and people are strangers to one another, it is rare to see joint decisions in the absence of some empowering structure. To illustrate both of these failures of joint agency, consider a pedagogical parallel. Perhaps you, too, have tried a generalized prisoners’ dilemma experiment in your classrooms. The way I have done it is to offer two possible payoffs for students to select between as individuals: either a slight break in the grading on a little paper, or an automatic A on a big paper, for instance; however, if more than 20 percent of the class opts for the second option, all bets are off for everyone. I invite the students to discuss this as much as they like in advance of making their selections, and they are very eloquent, but they must make their selections as individuals. In over a decade of trying this out, I have yet to need to offer any breaks in the grading: each time more than 20 percent has defected. To be sure, the prisoners’ dilemma is a particular strategic situation. I am far from seeing it, or game theory more generally, as the key to all political interaction. Nonetheless, the story illustrates how useless discussion can be if it is not coupled with an apt mechanism for collective decision. Occasionally, I do have a particularly perceptive student who says, “Just give all your selection forms to me, and I will mark 81 percent of them for the lesser option and 19 percent for the greater.” Any such collective agency, however, I rule out, for I do not intend to give breaks in the grading. Of course, well-informed wishes and thoughts are better than ill-informed ones, and Fishkin’s work with Deliberative Polling has impressively shown that even brief bouts of discussion can greatly improve how well people are informed on a given issue. Furthermore, I have no wish to deny that some people are sufficiently civic minded that, especially when spurred by some discussion with others, they will take account, even in the context of a Deliberative Poll, of what the impact on others would be of actually pursuing the policies they favour. In this way, they can perhaps begin to move in the direction of voicing an opinion as if they were participating in a collective decision (see McMahon 2001, 43). Still, take ourselves as examples: there remains all the difference in the world between the task of stating one’s teaching preferences for next semester and the task of coming up with a departmental schedule for next semester. Even if, in stating our preferences, we show some consideration for the preferences of others, we still remain in a situation far less constraining and disciplining than that of actually trying to generate a schedule free of conflict. Public opinion polls often reveal conflicting pairs of widely shared preferences. For example, in the United States, they revealed pairs of views such as “we want the United States to go to war with Iraq” and “we do not want to pay the hundreds of billions of dollars that such a war would cost.” Of course, the pollster can take on the deliberative work and shape the questions according to his or her own

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conception of the politically possible: “Which would you rather: war with a $200 billion price tag, or no war?” Yet there are almost always further, more detailed but still important questions to settle that require continued deliberative discipline even after one central question has been posed and answered: What kind of war, or what kind of peace? There is never an easy answer to what is practically possible and what is not – that is why addressing such questions has always been an art. Through long-standing adaptation to oppressive circumstances – as theorists from Marx to Elster have noted – people can be led not only to overlook possibilities for change but also to resign themselves to unjust actualities.13 The possibilities must be probed, their plasticity prodded. The fact remains, however, that serious deliberation must consider what is possible and what is not. Polling, even Deliberative Polling, is able to give us only a list of individuals’ wishes or “toll-free” preferences that have not been seriously subject to the discipline of any process of collective decision. They have not been – to put it in Arrow’s terms – because the preferences have not been aggregated. To participate in a Deliberative Poll is not to be part of any collective agent. To highlight this fact, it is useful to compare Deliberative Polls to other recent experiments in setting up “minipublics.” A wide range of such efforts has recently been surveyed by Archon Fung (2003). These are all innovative ways of gathering relatively small groups of citizens in order to generate input relevant to the law-making or policy-making process. Among them, Deliberative Polls occupy one end of the range, both in being the most statistically representative of the populace and in being the least empowered. The other actual efforts that Fung considers are the following: the Citizen Summits run by AmericaSpeaks, which also lack empowerment but which make more effort to aggregate individuals’ views into a joint view; the community meetings run in 1990 by Oregon Health Decisions, which were “moderately empowered”; the monthly citizens’ meetings held by the Chicago Police Department, which “develop common agendas and strategies;” and, most empowered of all, the Participatory Budget mechanisms of Porto Alegre, Brazil (358, 360). In characterizing the disadvantages of a “weak” or unempowered minipublic, Fung concentrates on the lesser incentive for serious involvement that exists when no authoritative decision will result (346). This comparative lack of incentive for serious involvement will in turn, he notes, yield a comparatively weak tendency for the participants to inform themselves or develop citizenship skills, or for the process to influence officials (353-54). Nonetheless, Fung is willing to concede that the “deliberative quality” of Deliberative Polls is “high” – higher than that of the other forms he canvasses (364). What I now want to suggest is that this last is a mischaracterization: in fact, the deliberative quality will be low precisely because the empowerment is low.

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We must not get hung up on the terminology, however. At one point, Fung (2003, 343) glosses “deliberation” as “a process of public discussion in which participants offer proposals and justifications to support collective decisions.” If we allow that the collectivity whose decisions are in question may be different from the group of people gathered in the relevant minipublic, then I would concede that, according to this gloss, the deliberative quality of Deliberative Polls can be high. I myself would think of deliberation as involving more than just canvassing proposals and justifications: its aim is to decide what to do. A group that is not empowered to do anything – and not asked to decide what, as a group, it would do if it were empowered to do something – is not deliberating in this fuller sense. But I do not insist on this stricter sense of “deliberation.” However we label the discussions of an unempowered group, they will suffer from defects of practical reasoning that stem from its lack of empowerment. These defects will be due to the lack of three types of discipline, which I can now sum up. I have already alluded to two types of discipline that actual agency or power bring: the fiscal discipline of crafting proposals for which one is really willing to pay, and the pragmatic discipline of actually working out compossible co-ordination or scheduling schemes. A third type of discipline is less rationally compulsory but no less important in democracies: it is the social discipline of working out solutions that take due account of the views of others. Such solutions are not always possible; however, if, back in 2002, the Poles and Spaniards on the one hand, and the French and Germans on the other, had been simply polled as to their wishes regarding the European Union’s rules, there would have been no prospect of avoiding constitutional stalemate. The only chance for a resolution was to sit these nations’ representatives down together in a forum that empowered them to work out a proposed solution with prima facie authority. Only agents empowered to some degree to enact or contribute to the enactment of solutions will have the incentive and ability to work out compromise solutions. This distinction among three types of rational discipline enables me to somewhat qualify my claim that Deliberative Polls do not subject preferences to the discipline of collective decision. It will be objected that, if the exercise is well timed and appropriately publicized, the participants may indeed feel that they will have some influence on real political outcomes. This expectation of influence may discipline their expression of their views. In terms of the threefold distinction, we may answer that, of course, there may be some social discipline in such cases: expecting to have an effect may lead the participants to pay close attention to one another’s views. In the absence of a collective decision mechanism, however, neither fiscal discipline nor the pragmatic discipline of compossibility is to be expected. That this is so can be shown by adapting Pettit’s work (2001b) on the “discursive dilemma.” As suggested above, one might think that one ought

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Table 9.1 Collective discipline and the discursive dilemma

Person 1

2

3

Should we go to war?

Yes

No

Yes

Should we cut taxes?

Yes

Yes

No

Can we responsibly go to war?

No

No

Yes

not to undertake a major war without being willing to pay for it – so that, for instance, one should avoid major new tax cuts when undertaking a major war. Consider three people with the following preferences (see Table 9.1). In this situation, each individual has fiscally disciplined bottom-line views: none of them would wage a war without paying for it. It does not follow, though, that as a group they are fiscally disciplined. If the group is asked the question “should we go to war?” its majoritarian answer is that we should, even though a majority of the group would cut taxes. The electoral sanction can pressure an actual legislature toward collective discipline of this kind. Because it is not constituted as a body that will make decisions that it will later be held accountable for, a sample of people gathered for a Deliberative Poll has no such incentive for collective discipline, whether fiscal or more broadly pragmatic. Having explained why even Deliberative Polls are not subject to practical discipline, I must come back to the question of corruption. In collective practical reasoning, each of these modes of discipline – the fiscal discipline of putting your money where your mouth is, the pragmatic discipline of compossibility, and the social discipline of mutual respect – is also a discipline of truth. That is because what we ought to do is conditioned on what we can pay to do, on the practical coherence of our projects, and, in a democracy, on embodying mutual respect among the citizenry. The views collated in a Deliberative Poll are not essentially disciplined in these respects. Yet discipline of these three kinds is surely an essential component of the virtue important in a democratic citizen. To lack this discipline, accordingly, is to be corrupt in an important sense. By the same token, the views expressed in Deliberative Polls fail the cardinal precondition – flagged by Williams – for the disposition of sincerity: they are not adequately subject to the disciplines of truth. To fail this precondition is, in a way, a more radical type of corruption than exists when the precondition applies to a type of utterance that is corrupt because it is insincere. Because poll results, whether deliberative or not, fail to meet this precondition, they cannot be insincere, but they cannot be sincere either.

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That is, they are not even candidates for sincere or insincere statements about what we ought to do. The last qualification is important: expressions of wish can of course be sincere or insincere as expressions of wish. Unlike an official’s defence of a policy, however, which may or may not be corrupted by bribery, wishes as collated by polls do not speak – sincerely or insincerely – to what we ought to do. They lack fundamental normative significance. The Counterfactual Question is meant to articulate a presumed standard of what we ought to do but, by abstracting from the institutions of empowerment that could both discipline people’s wishes and give their expression practical point, it ignores what it takes for the people to speak to what we ought to do. The literature on deliberative democracy has touted the civilizing force of discussion, but we must not neglect the civilizing force of empowerment. What a view of the popular will built on the Counterfactual Question leaves out, in short, is that powerlessness tends to corrupt, and absolute powerlessness corrupts absolutely. Acknowledgments This essay has benefited from comments and criticisms on earlier versions presented in 2003 and 2004 at the conference called “Deliberative Democracy: Theory and Practice” at the Université de Montréal; at a workshop on deliberative democracy at the University of Maryland, College Park; at a meeting of the Society for Applied Philosophy in Manchester, England; and at a workshop on representation at the Center for Democracy and the Third Sector at Georgetown University. I am grateful to Joshua Cohen and Archon Fung for particularly useful comments. Above all, I thank James S. Fishkin for generously providing written and oral comments that have corrected some of my earlier misperceptions of his view; many no doubt remain.







Notes 1 Cf. Fishkin (1997, 162). I will capitalize the term “Counterfactual Question.” I have presented it in a slightly more portentous form than Fishkin does there by referring to “the people” instead of simply “people.” Given his insistence on gathering a statistically representative sample of the relevant population as participants in these deliberative events and given the title of the book in which he presents the question (The Voice of the People), it does appear that he has the people in mind and not just any old group of individuals. 2 I capitalize the term “Deliberative Poll,” using it to refer only to Fishkin’s trademarked version of this idea. 3 In case my use of the Rawlsian tag “reasonable and rational” seems out of place here, note that Rawls (1996, 205) endorses that classical republican’s conception of civic virtue. 4 This conjecture draws support from the prominence of the discussion of the US founders in Fishkin (1997). 5 The term “contestatory democracy” is Philip Pettit’s (1997). 6 For a powerful argument that republicanism ought to be completed by democratization, see Pettit (2001a). 7 I am grateful to Noëlle McAfee for the reference. 8 See, for example, Michelman (1997). Although Michelman effectively criticizes the radical populist hope mentioned in the text, this does not amount to a critique of deliberative democracy as such, for deliberative democracy can eschew radical populism. 9 Sen (1970, Chapter 4), notes that the impossibility result can be avoided if one gives up on completeness, but giving up on completeness highlights the importance of control of the agenda: which issues are going to get settled? And control of the agenda is both a matter of crucial, substantive interest in any democracy, as I have noted, and a matter dependent

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10



11 12 13

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on institutions. One can also plausibly evade the impossibility result by giving up condition U, the stipulation of an unlimited domain of input preferences, and avoid related difficulties with voting cycles by supposing that the extant preferences are “well behaved,” but so doing in effect is to lean on how party politics have been institutionalized in a particular historical setting. I am grateful to Jonathan Wolff for impressing on me the delicacy of attempting to draw lessons from Arrow. In Richardson (2002b, 67-72), I argue that the institutional substrate of the people’s will should be conceived as being distributed across a range of institutions, including, but not limited to, a popularly elected legislature. On the notion of the informal public sphere, see Habermas (1996, 307-8). On the value of political compromise, see Richardson (2002b, Chapter 11). See Elster (1983). I am grateful to the late Iris Marion Young for raising this important point about perceived possibilities.

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10 Consulting the Public Thoughtfully: Prospects for Deliberative Democracy James Fishkin

Experimenting with Deliberative Democracy Efforts at democratic reform have long been entangled in an apparently forced choice between two fundamental values: political equality and deliberation. Around the world, changes in democratic institutions, both formal and informal, have brought “power to the people” but under conditions in which the people have little reason or effective incentive to think very much about the power we would like them to exercise.1 A vast range of social science literature documents that the mass public in almost every polity lacks information or does not even pay much attention to political matters.2 And when the public is mostly uninformed, it is easily subject to manipulation by the mechanisms of one-sided persuasion developed for advertising.3 In our long journey of bringing power to the people – through mass primaries, referenda, recall elections, direct election of senators, public opinion polls, and other forms of public consultation – we have empowered a public that generally lacks the information and attention required for the value of deliberation, in the name of processes that embody a degree of political equality (via equal counting of votes or, in the case of opinion polls, random sampling). Even in the best circumstances, we seem to face a forced choice between politically equal but relatively non-deliberative masses and politically unequal but relatively more deliberative elites. If we engage the public at all, it is mostly by supplanting Madison (an advocate of elite deliberation) with the techniques of Madison Avenue. Given this sorry history, I believe that democratic reformers should be guided by the quest for institutional designs that will simultaneously realize the two core democratic values of deliberation and political equality. The apparent conundrum is a false dilemma in that it is possible to achieve institutions that realize both values to a high degree. This assertion is not merely wishful thinking. It is the product of serious social science experiments harnessed to guide possible institutional design.4 Just as the American

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founders struggled to invent a political science that would guide their design of institutions, so too should we harness modern social science for the same purpose. However, one difference is that modern experiments can be experiments (or quasi-experiments) in the scientific sense. Instead of mere informed speculation, we can employ rigorous social science to explore the prospects for better achieving our core values. In this aspiration, we can be guided by answers to a Counterfactual Question: what would the public think if it were consulted by a democratic process embodying both political equality and deliberation? Answers to this question can guide experimentation with the possible design of democratic institutions. In the absence of actual institutions that realize these core values, answers to this question offer a method of consulting the public that provides a voice worth listening to. The public is already consulted in a multitude of ways that are seriously distorted by the failure to realize either or both of these core democratic values. And even our official processes of public consultation – via elections and the pronouncements of those who represent the people – are routinely distorted by an absence of one or both of these values. To take just the case of the United States, partisan gerrymandering notoriously distorts our congressional elections so that very few elections are competitive. Such manipulations have suppressed the opportunity to realize political equality. An “Electoral College,” which leaves the competition almost entirely to a handful of “battleground” states, distorts our national presidential elections. The very design of our constitutional system builds in a variety of violations of political equality (see Dahl 2002). As for deliberation, our elected representatives are motivated by activities of credit claiming and posturing that can be explained almost entirely by the motivation to be re-elected rather than by any effort to deliberate on the merits.5 A Response to Richardson Given this state of affairs, I can only react with some surprise to the line of criticism offered by Henry Richardson in Chapter 9 above. First, he attacks the notion of informal or unofficial public consultation since it represents an effort to consult a “public will” outside our actual republican institutions. His argument is that the disciplines of truth and power distinguish those volitions expressed in real decision making from mere “wishes” expressed by voters when they are not actually wielding power. According to Richardson, only the former deserve to be taken seriously. This argument applies to conventional public opinion polls as well as to Deliberative Polls. Second, an implication of this argument is that he believes that the only appropriate expressions of a public will come from our actual republican institutions, whether they are expressed through electoral processes or the representatives

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elected through them. Third, Richardson argues that Arrow problems entangle efforts to consult the mere “wishes” of the public in intractable difficulties. To sketch a line of response to this argument, I must clarify the point of the Deliberative Poll. Ordinary polls offer a snapshot of what the public is thinking, even if it is uninformed or not thinking much about an issue. Deliberative Polls, by contrast, employ social science to offer a representation of what the public would think under good conditions for thinking about it. The Deliberative Poll begins with a standard survey with a good random sample. It engages the sample in an extended deliberation – via small-group discussions, carefully balanced briefing materials, and questions from the small-group discussions directed to panels of competing experts. Finally, it assesses the considered judgments of this sample after the process of deliberation. Where possible, the Deliberative Poll includes a separate random sample, a control group who do not deliberate. The final, deliberative opinions of the initial sample can be compared with the opinions at the start as well as to those from the control group. A principal motivation for developing the Deliberative Poll was the pervasive effect of what Anthony Downs (1957) called “rational ignorance” on the opinions of voters as they participate in our actual republican institutions. If I have one vote among millions, why should I spend a lot of time informing myself about complex policy issues? My individual vote or my individual opinion will not have any discernible effect, and I have other pressing demands on my time. By contrast, the Deliberative Poll creates a situation in which each individual citizen has incentives to overcome rational ignorance. His or her vote or opinion seems important. It will be one in a few hundred in a highly visible experiment engaging both policymakers and the media. It will be one voice in a small-group discussion of a dozen or so (the several hundred participants are divided up into randomly assigned small groups). Important decision makers will participate and respond to one’s questions. Our data show that the participants feel a great sense of empowerment from the process, and they take it very seriously: they confront difficult trade-offs; their views become more informed (as measured by information questions), and we have demonstrated that it is those who become more informed who change their views. The changes are not casual or unmotivated; they are driven by information as compared to other opinion polls and other voting. In this connection, we have conducted the Deliberative Poll in the context of actual elections in Britain, Denmark, Australia, and the United States, and the contrast between deliberative opinion and the more casual opinions as evidenced in actual voting is often as notable as the contrast between Deliberative Polling and conventional polling.6 Contrary to Richardson’s speculation, the mere fact that citizens are voting in a real election does not give their thinking more gravitas or discipline

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(a point that corroborates the Downsian argument from rational ignorance). But if experimental conditions are devised in which they do have reason to pay attention, to become more informed, to weigh difficult trade-offs, and to give a considered judgment, then our research shows that they are, for the most part, fully capable of doing so. The conditions of deliberation distinguish mere wish (or, in the parlance of survey research, “top of the head” opinions) from considered judgment. The mere act of voting does not. It is worth adding that in one case, the official vote came about via the Deliberative Poll. In Greece, we returned to this form of democracy, originally derived from ancient Athens (where deliberative microcosms of several hundred chosen by lot made key public decisions), to the official selection of a candidate for mayor for one of Greece’s two major parties. After filling out a final questionnaire, the citizens proceeded into a voting booth and registered their deliberative opinions about who to select as the party’s candidate. We showed no appreciable difference between the final Deliberative Polling questionnaire and the candidate preferences in this final balloting (Fishkin et al. 2008). Athenian democracy was returned to Athens (or the Athens metropolitan area) for an official decision after a gap of some 2,400 years. The difference between official decision and unofficial public consultation appears to make no empirical difference to what happens in a Deliberative Polling situation. More importantly, Richardson’s line of argument would quash the effort to experiment with opinion formation in a context embodying both deliberation and political equality. Richardson would do so in favour of letting our actual republican institutions speak for the people, but as we have already argued our actual institutions are defective in their realization of political equality and deliberation. The public is ill informed and inattentive and does not grapple with difficult trade-offs. And our public officials are concerned primarily with behaviours designed to win re-election or promotion to higher office. They are engaged at best in credit claiming and impression management and at worst in actual manipulation and misinformation. Actual “republican” institutions serve neither political equality nor deliberation. Richardson’s program of ignoring all voices that do not wield actual power would leave us only with radically defective expressions of the public will on particular policies and with an inability to engage in informed democratic experimentation to try to improve the situation. Richardson’s third major point, that efforts to consult the public are inevitably enmeshed in Arrovian difficulties, is particularly ironic. Although there is now considerable reason to doubt the frequency with which cycles violating transitivity occur in actual political life (see Mackie 2003), the possibility is a challenge to a coherent public will. William Riker, who made more of the challenge more explicitly than any other theorist, offered the hypothesis that “discussion” among those with policy differences could

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lead to a shared sense of the problem through the creation of “singlepeakedness.” Such a shared sense or underlying dimension makes cycles impossible (as Duncan Black [1958] demonstrated years ago).7 With various collaborators, I have pursued this line of empirical investigation, and we show, in a variety of policy contexts, that the likelihood of cycles effectively vanishes with the increase in “structuration” (the percentage of the sample who share the same single-peaked dimension along which they can array their preferences). In other words, deliberative preferences resulting from institutions such as the Deliberative Poll are far less likely to be subject to Arrovian difficulties than non-deliberative preferences (see List et al. 2007). When people discuss the issues together, they may not agree on their rankings of alternatives, but they are more likely to share a common understanding of the problem. When their preferences can be arrayed along a single dimension (such as left/right or, in the case of our energy projects, cheap energy versus clean energy), the resulting single-peakedness makes cycles impossible. Deliberative preferences provide a basis for collective coherence that “top of the head” preferences do not. Furthermore, we can uncover deliberative preferences in the experimental context of Deliberative Polling. Given the increases in preference structuration that result from deliberation, the best strategy for avoiding Arrovian difficulties – as they might pose a challenge to a coherent public will – is to foster deliberative experiments of the sort that we have been pursuing and that Richardson would have us ignore.8 In sum, Richardson would strip Deliberative Polling and similar deliberative experiments of any normative significance. From the standpoint of democratic theory, he would have us defer entirely to existing republican institutions rather than pursue the program of research and public consultation that actually embodies the two core democratic principles of political equality and deliberation. These existing institutions, however, dramatically lack one or both of these core values. In effect, his position would stifle the expression of a will of the people that represents everyone under conditions where they can think – all in favour of a shrinking sound-bite democracy of manipulation and electoral advantage. As a result, Richardson would also stifle the one best hope for avoiding Arrovian cycles because he mistakenly thinks that deliberative public consultation would be subject to it – despite all empirical evidence to the contrary (evidence that it is less subject to such difficulties than the institutions on which he relies). Varieties of Public Consultation Now let us situate Deliberative Polling in the broader context of alternative strategies for consulting the public. In doing so, we will turn from Richardson’s critique to practical issues about the methods and contexts in which

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Table 10.1 Eight forms of public consultation

Public opinion

Method of selection

A. Raw

B. Refined

1. Self-selection

1A  SLOPs

1B  Discussion Groups

2. Non-random

2A  Some polls

2B  Citizens’ Juries etc.

3. Random sample

3A  Most polls

3B  Deliberative Polls

4. “Everyone”

4A  Referendum democracy

4B  Deliberation Day

it is possible to consult the public and achieve our two core values of deliberation and political equality. Consider Table 10.1. This simple classification focuses on two issues: what and who? Consider two fundamental distinctions: the first has to do with what form of public opinion is being assessed; the second has to do with whose opinion it is that is being assessed. When we ask about forms of public opinion, we are asking about the thoughtfulness of public input. When we ask who is included, we are asking about how the aspiration for inclusion is implemented. When considering forms of public opinion, let us say that opinion is “refined” if it is the product of deliberation exposing it to a wide range of alternative views supported by sincere arguments and reasonably accurate information. Refined opinion is informed – informed about competing views and facts sincerely viewed as relevant by proponents of different positions. People are aware of the arguments and have reflected on them or thought about them. By contrast, we will say that opinion is “raw” if it is not the product of such deliberation. The other distinction concerns whose opinion is being consulted. Although the classifications I will focus on do not exhaust all the possibilities, they cover the principal practical alternatives. The people consulted can be selfselected; they can be selected by some method of sampling that attempts to be representative without probability sampling; they can be chosen by random sampling; or they can constitute virtually all voters (or members of the group being consulted). When these two dimensions are combined, the eight possibilities in the above chart emerge. First, I will fill out these categories; second, I will turn to which possibilities offer the prospect of best realizing our two core values. The first category, 1A, is already being implemented, especially on the Internet. Norman Bradburn of the University of Chicago has coined the acronym SLOP for “self-selected listener opinion poll.” Before the Internet, radio call-in shows would commonly ask for responses by telephone to some

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topic. The respondents to SLOPs are not selected by scientific random sampling as in public opinion polls. Instead, the respondents simply select themselves. They are predominantly those who feel more intensely or feel especially motivated. Sometimes they are organized. The SLOP, it is thought, gets “grassroots” opinions. However, in the parlance of American lobbyists, sometimes the response is something more organized and synthetic – the impression of grassroots that is really “astroturf.” A good example of the dangers of SLOPs came with the world consultation that Time magazine organized about the “person of the century.” Time asked for votes in several categories, including greatest thinker, greatest statesman, greatest entertainer, greatest captain of industry. Strangely, the same person got by far the most votes in every category. Who was this person who towered above all rivals in every category? Ataturk. The people of Turkey organized to vote by postcard, the Internet, and fax and produced millions more votes as a matter of national pride than the rest of the world could muster for any candidate just through individual, unorganized voting (Morris, Tran, and Bellos 1997). Media organizations routinely conduct SLOPs on the Internet on a wide range of political or social matters. A SLOP involves visitors to a website and gives people a sense of empowerment (they are registering their opinions), but it produces data that are misleading, that offer only a distorted picture of public opinion. To take just one example, SLOPs at the time of President Clinton’s impeachment in the United States routinely showed large majorities in favour of impeachment, whereas scientific polls showed a completely different picture. Those feeling most intensely registered their views, sometimes more than once. In the 2008 presidential cycle, SLOPs routinely showed Ron Paul as the leading Republican presidential candidate when scientific polls showed he had only small but intense support. The same pattern held for Alan Keyes in two earlier presidential cycles. It is often thought that technology might facilitate the better realization of ancient forms of democracy. But SLOPs hark back to the practices of ancient Sparta, not ancient Athens. In Sparta, there was a practice called the Shout, for which candidates could pack the hall, and the one who got the most applause was elected (Plutarch 1988, 38). Later we will turn to a different category that realizes Athenian rather than Spartan democracy. The difficulty with category 1A is that it offers a picture of public opinion that is neither representative (embodying political equality or equal counting) nor deliberative. It offers a picture of uninformed opinion that is also distorted and partial with respect to whom it includes. If it is a mirror of public opinion, then it is more like a carnival fun house mirror than one that reproduces what it reflects. An alternative to the SLOPs of category 1A is the possibility of serious deliberation, refined public opinion, produced among self-selected groups.

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Discussion groups fill out category 1B. If the discussion groups offer the opportunity to weigh the main alternative arguments that fellow citizens would want to raise on an issue, then they can achieve a measure of deliberation on an issue even if the participants are not a good mirror of the entire population. The Kettering Foundation supports a large network of National Issues Forums (NIFs) in the United States and in several other countries in which thousands of self-selected participants deliberate conscientiously and sincerely with briefing materials that offer a balanced and accurate basis for discussion.9 These participants meet in churches, schools, and neighbourhood venues, and they spend hours in serious consideration of the alternatives. However, their conclusions, though filtered or deliberative, are not representative of the views of the entire public. Although there are many discussion forums on the Internet, it is worth pausing to note the difference between deliberative practices on the Internet and those in face-to-face discussion. When NIF participants gather for a discussion forum, they can evaluate each other’s verbal arguments face to face; they have an extended period for arguments and concerns on one side to be answered by responses on an opposing side; they have an agenda of materials that cover the issue to make sure that they are at least aware of the main alternative arguments that have been previously voiced; and they have a moderator to ensure that everyone in the forum speaks, that no one dominates the discussion, and that there is an atmosphere of mutual respect that permits the respondents to listen to each other. Can such a forum be reproduced on the Internet? One difficulty is that the Internet in its present form is still largely text based. The visual and verbal expressions of a face-to-face discussion are open to participants even if they are less educated or less comfortable with written materials. A NIF forum lasting a few hours gets a concentrated dose of attention and participation. Many forums on the Internet involve respondents for only brief bursts of activity. Internet democracy sometimes seems as if it is suited for citizens with attention deficit disorder, zooming from one site to another rather than offering sustained dialogue. On the other hand, the Internet offers the advantage that it is especially suited to asynchronous communication. Not all people have to be active at the same moment. Issues raised at one point can be responded to at a different time. In addition to the convenience that asynchronous communication offers, the Internet has the advantage that it may promote thought and reflection over a more extended period. As technology improves, we can imagine that non-text-based, face-to-face discussion will become more widespread, and interactions could approach something more like two-way television than an exchange of e-mails. As educational institutions attempt to adapt classes to the Internet, the same apparatus of discussion useful for education can be used for democracy. Also, as the availability of access to the Internet spreads, access to the poorer and

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less literate strata of the population will mean that self-selected forums or discussion groups are not just from one side of the digital divide. As discussion methods become better adapted to the Internet, even for the less literate, the use of online discussion groups serves the value of democratic deliberation. They contribute to creating citizens who are more informed. However, they do not achieve the basic goal of simultaneously realizing both of the values under discussion. If the voice of the people is both representative and deliberative, then it combines major elements of inclusiveness and thoughtfulness. SLOPs are neither. Discussion groups achieve deliberation among unrepresentative groups. For that reason, they serve the enlightenment of the participants, but they do not offer a voice for “we the people.” Category 2A combines raw public opinion with methods of selection attempting to achieve some degree of representativeness – but ones that do not employ probability sampling. Some public opinion polls fall into this category. Those employing quota sampling, a practice still common in many democratic countries outside the United States, justify their method as an attempt to approximate probability sampling. Some spectacular failures, such as the 1948 Dewey/Truman debacle and the 1992 British general election, have been blamed at least in part on the use of quota sampling (for the latter, see Jowell et al. 1993). Category 2B employs non-random methods of selection with attempts to arrive at more deliberative public opinion. Various methods of public consultation fit this category. So-called citizens’ juries use quota samples to select small numbers of participants (typically twelve or eighteen) to deliberate for several days or even weeks on public issues. Consensus Conferences typically solicit respondents through newspaper ads and then use quotas to attempt to approximate representativeness. These methods begin with selfselection and then employ such small numbers that any claims to representativeness cannot be credibly established.10 Category 3A, combining probability samples with raw opinion, is exemplified, of course, by the public opinion poll in its most developed form. It avoids the distorted representativeness of SLOPs as well as the more modest distortions of non-random sampling. Just as Gallup vanquished the Literary Digest by using quota sampling for the effective launch of the public opinion poll in the 1936 US presidential election, this category, 3A, trumps the SLOPs of 1A as well as the quota sampling of 2A.11 Public opinion polling reflecting raw public opinion offers a thin “top of the head” expression of the public voice. On complex policy or political questions, the views represented by polls are crippled by what Downs (1957) called “rational ignorance.” If I have only one vote in millions, then why should I spend a lot of time and effort becoming informed (as we would like ideal citizens to do) when my individual vote or opinion will not make any

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appreciable difference? In addition, the views reported by polls on complex political or policy matters are often crippled by a second factor – the tendency to report opinions that are not only based on little thought or reflection but may not exist at all. Phantom opinions or “non-attitudes” are reported by polls because respondents almost never wish to admit that they do not know, even when offered elaborate opportunities for saying so. Building on the classic work of Phil Converse of the University of Michigan, George Bishop and his colleagues at the University of Cincinnati dramatized this issue with their study of attitudes toward the “Public Affairs Act of 1975.” Large percentages of the public offered an opinion even though the act was fictional. The Washington Post more recently celebrated the twentieth un-anniversary of the non-existent “Public Affairs Act of 1975” by asking respondents about its “repeal.” The sample was split, with half being told that President Clinton wanted to repeal the act and half being told that the “Republican Congress” wanted its repeal. Although such responses were based on a minimal amount of information (or misinformation provided to the participants, since the act did not exist in the first place), the information base was really just a response to a cue about who was for the proposal and who was against it.12 Deliberative Polling, which fits into category 3B, was developed explicitly to combine random sampling with deliberation. It is meant to include everyone under conditions in which the public can think. Deliberative Polling attempts to employ social science to uncover what deliberative public opinion would be on an issue by conducting a quasi-experiment, and then it inserts those deliberative conclusions into the actual public dialogue or, in some cases, the actual policy process. Deliberative Polling begins with a concern about the defects likely to be found in ordinary public opinion – the incentives for rational ignorance applying to the mass public and the tendency for sample surveys to turn up non-attitudes or phantom opinions (as well as very much “top of the head” opinions that approach being non-attitudes) on many public questions. At best, ordinary polls offer a snapshot of public opinion, as it is, even when the public has little information on, attention to, or interest in the issue. Deliberative Polling, by contrast, is meant to offer a representation of what the public would think about an issue under good conditions. Every aspect of the process is designed to facilitate informed and balanced discussion. After an initial survey, participants are invited for a weekend of face-to-face deliberation; they are given carefully balanced and vetted briefing materials to provide an initial basis for dialogue. They are randomly assigned to small groups for discussions with trained moderators and encouraged to ask questions arising from the small-group discussions to competing experts and politicians in larger plenary sessions. The moderators attempt to establish an atmosphere in which participants listen to each other and no one is permitted to dominate the discussion. At the end of the weekend, participants

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take the same confidential questionnaire as on first contact, and the resulting judgments in the final questionnaire are usually broadcast along with edited proceedings of the discussions throughout the weekend.13 The weekend microcosm tends to be highly representative, both attitudinally and demographically, compared with the entire baseline survey and census data about the population. In every case thus far, there have also been a number of large and statistically significant changes of opinion over the weekend. Considered judgments are often different from “top of the head” attitudes solicited by conventional polls. Looking at the full panoply of Deliberative Polls, we believe that about two-thirds of the opinion items change significantly following deliberation. But what do the results represent? Our respondents are able to overcome the incentives for rational ignorance normally applying to the mass public. Instead of one vote among millions, they have, in effect, one vote in a few hundred in the weekend sample and one voice in fifteen or so in the smallgroup discussions. The weekend is organized to make credible the claim that their voices matter. They overcome apathy, disconnection, inattention, and initial lack of information. Participants from all social locations change in the deliberation. Knowing that someone is educated or not, economically advantaged or not, one cannot predict change in the deliberations. However, we do know from knowledge items that becoming informed on the issues predicts change on the policy attitudes. Deliberative public opinion, in that sense, is both informed and representative. As a result, it is also, almost inevitably, counterfactual. The public will rarely if ever be motivated to become as informed and engaged as those in our weekend microcosms. The idea is that if a counterfactual situation is morally relevant, why not do a serious social science experiment – rather than merely engage in informal inference or arm chair empiricism – to determine what the appropriate counterfactual might actually look like? And if that counterfactual situation is both discoverable and normatively relevant, why not then let the rest of the world know about it? Just as Rawls’s original position can be thought of as having a kind of recommending force, so too the counterfactual representation of public opinion identified by the Deliberative Poll recommends to the rest of the population some conclusions they ought to take seriously. They ought to take the conclusions seriously because the process represents everyone under conditions in which they could think. The idea may seem unusual in that it melds normative theory with an empirical agenda – using social science to create quasi-experiments that will uncover deliberative public opinion. But most social science experiments are aimed at creating a counterfactual – the effect of the treatment condition. In this effort to fuse normative and empirical research agendas, the trick is to identify a treatment condition that embodies the appropriate normative relevance.

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Two general questions can be raised about all research designs – questions of internal and external validity (see Campbell and Stanley 1963). Sample surveys are relatively high on external validity: we can be fairly confident about generalizing the results to larger populations. By contrast, most social science experiments done in laboratory settings are high in internal validity: we can be fairly confident that the apparent effects are indeed the results of the experimental treatments. However, experiments done with college students, for example, lack a basis for external validity if the aim is to find out something about the general population. If a social science experiment were to have relatively high internal validity, where we could be confident that the effects resulted from the normatively desirable treatments, and if it were to have relatively high external validity, where we could be confident about its generalizability to the entire citizen population, then the combination of those two properties would permit us to generalize the consequences of the normatively desirable property to the entire citizenry. We could be confident in the picture of a counterfactual public reaching its conclusions under normatively desirable conditions. In other words, if an experiment with deliberation were high on internal validity, then we could be confident that the conclusions were the results of deliberation (and related factors such as information). If such an experiment were high on external validity, then we could be confident about generalizing it to the relevant public of, say, all eligible voters. Only with both kinds of validity would the quasi-experiment called Deliberative Polling have any claim to represent the considered judgments of the people. We have completed several full-scale Deliberative Polling projects on the Internet using scientific samples and control groups.14 Deliberative Polling on the Internet eventually promises great advantages in terms of cost and flexibility in the time required of participants. National Deliberative Polls require the logistics of national transportation, hotels, and food. Two faceto-face Deliberative Polls have even had official airlines (American Airlines for the National Issues Convention in Austin, Texas, and Ansett for Australia Deliberates). Face-to-face Deliberative Polls also require that respondents give up an entire weekend for the deliberations as well as for travel to them. Although we have used funds to ameliorate practical difficulties (paying for child care and even in one case providing a researcher to milk a respondent’s cows during her absence), it is obvious that we lose some respondents because of the demands placed on them. Internet-based Deliberative Polls offer the promise of greater convenience and continuing dialogue. Even in the best case for realizing category 3B, there is a limitation to what is accomplished. Deliberative Polling, whether online or face to face, involves only a scientific random sample of the population. The thoughtful and informed views created in the experiment are not widely shared because the bulk of the public is still, in all likelihood, disengaged and inattentive because

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they are subject to the incentives for rational ignorance that routinely apply to citizens in the large-scale nation-state. Deliberative Polling overcomes those incentives for a microcosm but leaves the rest of the population largely untouched (I say largely since the rest of the population may well witness the process through the media). The last two categories, 4A and 4B, parallel the previous ones, except that when ideally realized they would offer the full embodiment of the kind of result represented by scientific sampling in 3A and 3B. If everyone somehow participated in mass consultations such as voting or referendum democracy, then 4A would represent the same views as those offered by public opinion polls in 3A. Of course, one problem with referendum democracy and other forms of mass consultation that attempt to involve the bulk of the mass public is that turnout is often so defective that only a portion of the public participates. Sometimes the participation in referendums or national elections is so low, in fact, that the distinction between mass plebiscitary democracy and self-selected samples in SLOPs becomes difficult to draw. Of course, there are possible institutional remedies for low turnout. Australia has a long tradition of compulsory voting, fining non-voters, that has worked well to provide one of the highest turnouts in the world in national elections. However, it is well established that compulsory voting improves just the level of participation and has done little or nothing to improve the level of knowledge or engagement among voters. The last possibility, 4B, is the most ambitious. Just as conventional polling (3A) models actual “top of the head” opinion in the mass public, which is represented by plebiscitary democracy (4A) in our scheme, so too Deliberative Polling 3B models mass deliberative public opinion (4B). The latter, however, is usually counterfactual. The mass public, in other words, is usually not deliberating; it usually does not have considered judgments on most policy issues. How could this counterfactual possibility be realized? How could it be realized either in a face-to-face context or online? Bruce Ackerman and I have a proposal. We call it “Deliberation Day” (see Ackerman and Fishkin 2004). The problem for the Deliberative Poll was to motivate a microcosm of the entire population to overcome the incentives for rational ignorance and to engage in enough substantive face-to-face discussion to arrive at informed judgments – informed about the issues and the main competing arguments about them that other citizens would offer. But it is one thing to imagine doing this for a microcosm, quite another to imagine doing it for the entire population. Gallup’s vision was that the combination of the media and polling could turn the entire country into “one great room.” The media would send out competing views, and the polls would report the public’s judgments, and it would be as if the entire country were in one town meeting.15 This vision foundered, however, on the lack of a social context that would encourage small-group deliberation.

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If everyone is one great room in the large-scale nation-state, then the room is so big that no one is listening. A different, more decentralized strategy is required. We propose a national holiday in which all voters would be invited to participate in local, randomly assigned discussion groups as preparation for the voting process a week later. Candidates for the major parties would make presentations transmitted by national media, and local small-group discussions would identify key questions that would be directed to local party representatives in relatively small-scale town meetings held simultaneously all over the country. Incentives would be paid for each citizen to participate. The cost, while massive, would make democracy far more meaningful since it would provide for an input from the public that involved most people and led to a large mass of citizens informed on the issues and the competing arguments. If the incentives for participation in this national holiday activity, Deliberation Day, worked and people actually became well informed, then it would make real the counterfactual deliberative opinion represented by the quasi-experiment of the Deliberative Poll. Candidate behaviour and advertising would have to adjust to the fact that voters would have become informed on the issues. The anticipation of such a deliberative public could do a great deal to transform the rest of the public dialogue. There are two categories in our scheme that achieve both values, 3B and 4B: Deliberative Polling and Deliberation Day. Deliberative Polling achieves political equality because everyone has an equal chance to be selected through random sampling. The latter achieves political equality through mass participation or everyone counted in the same way. In both cases, an important new increment of thoughtfulness is added by the deliberative process itself – briefing materials, small-group discussions, questions and answers from competing experts, opportunities to reflect together on new information, and competing arguments in a safe public space. Both strategies – Deliberative Polling and Deliberation Day – combine political equality and deliberation. Both are meant to be antidotes to shrinking sound-bite democracy and disaffected mass participation. Both are realizations of the same pattern of deliberative practice – small-group discussions alternated with plenary sessions with competing experts. The difference is whether this kind of experience is undertaken by scientific samples or by something approaching the entire mass public. Ideally, both versions will realize a combination of political equality and deliberation and escape the false dilemma with which we started.



Notes 1 For a fuller statement of this argument, see Fishkin (1991). 2 For an overview of this literature, see Carpini and Keeter (1997). 3 For a compelling account of the excesses that are possible, see Jamieson (1993).

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4 For an overview of this research program, see Fishkin (2009). 5 The classic account of congressional motivation is Mayhew (1986). 6 See, for example, our papers on the Australian referendum, the British general election, and the American primaries at http://cdd.stanford.edu. 7 See Black (1958); Riker (1982, 128) suggested that “discussion, debate, civic education and political socialization” might lead voters to “a common view of the political dimension” in the form of single-peakedness. In that case, “a transitive outcome is guaranteed.” 8 An alternative strategy, of course, would be to accept the incoherence of the public will but acknowledge that it will tend to be covered up by structure-induced equilibrium – by the design of institutions masking the fact that there is “instability” or cycles. For example, to take the simplest case, a two-party system does not offer three alternatives, and three is the minimum number necessary for cycles. But this strategy hardly helps Richardson’s argument. 9 For a good overview of these activities and the vision behind them, see Mathews (1994). 10 Another problem is that these research designs do not permit evaluation of how those agreeing to participate compare to those who do not both in attitudes and demographics. 11 Gallup abandoned quota sampling after the 1948 election. The advantage of probability sampling was demonstrated by the success of the Survey Research Center at Michigan in that election. 12 For a good overview of this work by Bishop and the replication by the Washington Post under the direction of Richard Morin, see Bishop (2005), especially 27-30. 13 For an overview, see Fishkin (1997). For more detailed analysis, see Luskin, Fishkin, and Jowell (2002). 14 See for example, Luskin, Fishkin, and Iyengar (2006) for a comparison of online and faceto-face deliberations on the same topic. 15 For a summary of this original vision and an argument that it is better achieved by the Deliberative Poll, see Fishkin (1997, 76-80, 161-76).

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11 The Micropolitics of Deliberation: Beyond Argumentation to Recognition and Justice John Forester and David Kahane

The past several decades have seen a burgeoning of deliberative democratic theory, from Habermas’ work, through the evolution of Rawlsian liberalism into an account of public reason giving, to complex contemporary debates of the sorts canvassed in this volume. Over the same decades, there has been a proliferation of experiments with democratic deliberation “on the ground”: innovative forms of public consultation and dialogue that also travel under the heading of “deliberative democracy.”1 These currents of theory and practice have tended, though, to flow in relative isolation from one another. In this chapter, we suggest that deliberative democratic theory can be enriched and in some ways reoriented through a consideration of democratic practice. We show how “practice stories” from professional mediators of public disputes reconfigure key questions in deliberative democratic theory. In particular, the two practice stories to follow, one from Michael Brown, a student of planning, and the other from Larry Sherman, an architect-planner, cast new light on the relationship between propositional and performative elements of argumentation and so reconfigure debates around how deliberative democratic theory should deal with issues of recognition, reciprocity, and the capacities and virtues required of citizens. We begin with John Forester’s account and interpretation of these two practice stories; then David Kahane takes up these accounts and draws more explicit links to deliberative democratic theory. John Forester: Two Practice Stories This portion of the chapter presents students of deliberation with an ethnographic view from the field, with a commentary on observations from the classroom and field research. These reflections grow from my ongoing work to examine the challenges and possibilities of public deliberation by exploring case-focused oral history accounts of the mediators of public disputes (Forester 2009). After ten years of exploring what we might call a

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“critical phenomenology” of professional practice in urban planning, public administration and public management (Forester 1989), I turned to explore a kind of political narrative analysis of “practice stories” of practitioners of planning and public dispute resolution (1999, 2005). This work suggests that a close look at the accounts of citizens struggling to mediate public disputes – and otherwise promote public deliberations – can enrich further analysis and provide a fresh view of both deliberative difficulties and opportunities. My fascination, in part, was this: in situations of public disputes – when citizens often vehemently disagree with one another about the use of land, about environmental protection, about HIV-AIDS public health strategies, and so on – when some of us are asked to convene public deliberations, to “help these citizens work out their differences,” what can we learn from the “mediators” asked to make such public deliberations work in real practice? How is it that the prospect of meeting with fifty fragmented and bitterly divided advocates in the room down the hall scares the daylights out of some of us yet seems like another day’s work for others of us (trained mediators and facilitators)? I’ve put variants of this question to experienced mediators and facilitators of public disputes, and I believe that many of us who are concerned with democratic deliberations can learn from their answers (Forester 2009). In what follows, I develop the simple idea that accounts of public deliberation must distinguish yet learn how to integrate the distinct practices of fostering dialogues, moderating debates, and mediating negotiations. I explore, first, an acutely revealing observation made by a relatively inexperienced urban planning graduate student whose words can teach us an enormous amount about broader public perceptions of deliberative conversations and the challenges of mediating interventions in particular. I then explore an account of a more senior, highly regarded Canadian professional planner-architect with extensive experience working with participatory, deliberative public processes. High Ground in Mediation, or All Slippery Slope? Seductions of Empathy After weeks of sustained discussions with graduate students who were hardly new to “participatory processes” in environmental or community planning, I asked my students at the beginning of a recent class to write about the expectations we might have of planners performing “third-party,” mediating, or facilitating roles. A student with regional planning experience, Michael Brown, provided a response so rich in its resonance with problems of mediated negotiations and facilitating public deliberations more generally that it bears close examination:

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[The notion of non-partisan third-party roles] is all based on theory. In the real world, no one is neutral; no one is non-partisan. Values will still become an important part of the mediation. Beyond fairness and knowledge, what can we expect from someone in the middle? [Even if he or she brings the skill sets to understand diverse parties (e.g., developers, politicians, community representatives)], will that person remain non-partisan, neutral, or make no value judgments? I doubt it. This is part of the reason I find mediation so fascinating. I could never, I don’t believe – myself – remain fully non-partisan or neutral on a subject. Once I hear argument from either side, I start to try and see it from their perspective, and therefore start leaning that way. Mediation be hard!

Following Lawrence Susskind’s lead, I’d tried to suggest that a community with many internal differences might hope to employ skilled mediators who brought a range of important normative commitments to their work – relative to fostering dialogue, encouraging the consideration of best available information, attending to issues of fairness, and so on – even while they might treat disputing community members in a non-partisan way (Forester 1994). Yet what’s striking, if not altogether poignant, in Brown’s comment is this: “Once I hear argument from either side, I start to try and see it from their perspective, and therefore start leaning that way. Mediation be hard!” Brown’s point here is not epistemological but ethical. Brown knows that a “perspective” is always a partial frame, that we never see “the whole elephant,” that our vision is always limited, always attending here and not seeing there. He knows too that we need to evaluate any “argument” for its supposed “propositional content” – that a perspective is a way of seeing but that an argument makes “iffy” or fallible claims that always need to be evaluated. But he suggests more too: that a perspective comes from a place, from some history, some experience of being rooted, in a way that creates difficulties for him – that calls to him to provide a kind of recognition, respect, or special consideration. Brown reports a difficult moral pull (“once I hear ... I start to try”), and if we’re interested in the difficulties of dealing with differences, with processes of public deliberation, we can learn a good deal here. We can learn not so much from his epistemological claims – if Brown makes any, perhaps that neutrality involves impartial consideration of argument irrespective of source or perspective – but from the moral and psychological responses he makes and might well share with many liberal-democratic citizens today. Like Brown, many citizens can also find it difficult to detach the “propositional content” of an argument (what they’re claiming to be real, crucial, threatening, etc.) from the “performative character” of that argument (how

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they’re claiming that – emphatically, fervently, righteously, apparently authentically, etc.). At times, it seems that trying to fully respect or recognize “where someone’s coming from” can undercut our ability to criticize or disagree with that person. Brian Fay has put one temptation and danger here forcefully: “Respect conceived as the mere acceptance of difference stymies interaction, dialogue, and mutual learning. It enjoins us to appreciate others but not to engage them in mutual critical reflection. The end product of multiculturalism misinterpreted as mere acceptance can thus be isolation (‘We’re us and They’re them.’). This is not respect but neglect” (1996, 240). Fay suggests that such “respect” does not encourage but actually undermines negotiation, for it discourages learning and joint inquiry. Brown suggests that such respect also undermines imaginative mediation: a laissezfaire attitude toward difference would hardly encourage mediators to help citizens learn about mistaken presumptions or help parties learn about practical options they’ve hardly even imagined in earlier meetings with “those people” they distrust. So many citizens may well and insightfully feel as Brown does here: not that we cannot evaluate arguments but that a public contest of arguments is much more than a contest of propositions. Considering evidence seems to be the easy part, Brown suggests. The difficulty involves the pull of an empathy or a solidarity or even a generosity – a generosity of willingness to “see it from their perspective,” from their standpoint or roots. Notice that if this rootedness of perspective seemed more fluid, less fixed, however, this seeing from conflicting perspectives might not be, as Brown put it, so “hard.” His difficulty seems not to be that he fails to see how detachment might aid the evaluation of argument, for he seems to know that all too well. Instead, Brown is telling us that the performance of another citizen’s “making” – and his own “hearing” – of an argument lead him beyond simply evaluating that argument’s claims to something further. Hearing the passionate claims of each side, Brown seems pulled to identify how easily it might be reasonable to believe and argue exactly as they’ve argued, to consider in a felt and embodied way how he too might see and argue just as they do and so, as he says, “start leaning that way.” Notice, of course, that Brown refers almost poignantly to “either side,” so even as he recognizes an abstracted impartiality or non-partisanship he points to its actual precariousness in any real deliberative conversations animated by differences of viewpoint and perspective. Impartiality, he suggests, poses not so much a problem in theory, in the abstract, but the performative quality of actual deliberation raises worrisome moral and psychological difficulties in practice.

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So Brown knows that something’s not right here, that his too easy empathyturning-to-solidarity with conflicting parties will not do. When he tells us that he feels stuck here – “mediation be hard” – he suggests that he feels a conflict not only between the claims of propositional arguments but also between claims to respect of those with seemingly reasonable perspectives. In hearing each side’s argument, Brown also hears them claim “I deserve to be taken seriously” – a claim he feels compelled to honour pre-reflectively, even as he “starts to try and see it from their perspective,” something he does not as a gift but as what we might call an elemental act of liberal regard if not liberal generosity. So let’s consider the moral-psychological pull and the difficulties Brown begins to identify. When we understand popular arguments as simultaneously and not only making claims about content but also enacting relationships of regard, Brown’s problem becomes more manageable. Brown sees that we can assess the content of an argument, but he signals to us that any facilitator, mediator, or manager of public deliberations will have a relationship to manage as well: he faces someone to listen to, not just words to hear, someone to try to understand, not just a disembodied claim to treat abstractly – and so a context of life prospects to recognize and respect, a lived context in which to place any substantive claim. Brown does not say that in trying to see from another’s perspective he appreciates that person’s considerations more, that he appreciates more what’s at stake for “either side,” while he maintains some independent place or viewpoint of his own; rather, he feels that understanding another’s reasons leads him to “lean that way,” even as he immediately recognizes he cannot lean in more than one direction at a time. So his problem goes well beyond Fay’s: respect leads Brown not to facile acceptance and thus neglect of real difference but to being drawn to apparently irreconcilably different positions. He knows, of course, that “either side” will have good reasons for its views, and he feels pulled, however impossibly, both ways. Thus his difficulty. The insight captured so tersely in “mediation be hard!” leads us also to identify what we might call an underlying “problem of liberal generosity,” a problem that not only university students in liberal democracies are likely to experience. A liberal generosity can motivate tolerance, respect, and acceptance of others’ views, even if it can also undercut impulses to press for change, to risk asking an unconventional question, to explore new options. At times, such “tolerance” can discourage us from asking others to consider options they seem not yet to have imagined, new approaches or options whose very innovative quality those others may find uncertain, ambiguous, anxiety producing, or threatening. So Brown’s pithy “mediation be hard!” is precise: it’s difficult for the tolerant, indeed generous, liberal – who takes pains not to impugn or be seen in

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any way to slight others’ views of the world and of the good life – to (1) step beyond what he or she hears as the passionate, reasonable, well-argued, long-suffered, and coherent view of the other, and (2) remain on some other independent, non-partisan ground from which to explore new and unforeseen “potential agreements,” possibilities of joint action. In this way, Brown signals to us something more than the pull of a relativism, a swamping of argumentative analysis by sympathies fuelled by a desire to understand from the inside if not by fellow feeling and camaraderie. He signals too – significantly – the pull away from an independent third-party helper’s role that depends on just that committed independence to understand and yet to pull back: to probe for proposals from each party that might also address the others’ needs, to search for creative suggestions that might provide a new way to go on, to consider fresh “what if ... ?” questions to help parties move forward rather than remain at loggerheads. Unlike a moderator of a debate, a mediator of a negotiation seeks not just to understand what a party may be claiming but also to do much more: not only to explore felt meaning and significance, or weaknesses in “either side’s” argument, but also to explore potentially embraceable options for action – options that will satisfy concerns raised by as many interested and affected citizens as possible. Tempted to lean the parties’ ways, Brown finds it hard to lean the mediator’s way: to explore the unexplored rather than the apparent argument at hand, to ask parties to jockey for position less and to learn more, to encourage parties to posture less and instead to propose more about what they might do together. Brown’s recognition of the difficulties of mediation can help us clarify, then, our differences in mandate if we seek (1) to encourage a dialogue, (2) to moderate a debate, or (3) to mediate a negotiation. Whether we call those distinctions analytic or semantic, conceptual or theoretical, they reflect immensely practical alternatives that participants in public deliberations might often confuse. In a faculty meeting no less than a democratic deliberation in a neighbourhood, for example, some can be “trying to understand what Smith and Jones are so divided over”; others can be “trying to figure out which argument (Smith’s or Jones’s) seems stronger”; yet others can be “trying to see if Smith, Jones, or others can propose a course of action that they can all get behind.” These three groups have differing agendas, and they can easily treat each other with impatience or worse. So a deliberative conversation in which half of the participants hope to learn through dialogue while the other half hope to learn through debate will likely teach its participants more about chaos than about the matter at hand. So we should hardly find it surprising that the highly regarded Public Conversations Project (PCP) distributes public education materials that stress and clarify the differences between

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the “dialogues” they hope to promote and the more adversarial “debates” the PCP staff hope to leave to other forums (Chasin et al. 1996). Brown’s observation, then, can help us see more clearly a widespread public confusion about public deliberation: the failure to distinguish these three distinct but deeply related processes of dialogue, debate, and negotiation. Students of democratic deliberation, too, can easily and often confuse or fail to appreciate the significant contributions that each of these processes can make to public deliberations. Brown seems to ask in exasperation “how can I lean toward all sides?” His metaphor of “leaning” to one side suggests that he imagines parties’ arguments as moves not in a “negotiation” (which might produce mutual gains) but in an adversarial “debate,” in which we might well have winners and losers, a zero-sum outcome. His own metaphor pre-empts his imagining a newly synthetic, negotiated proposal about what’s to be done emerging from the process of conversation. If we are to promote democratic deliberation, Brown suggests, then we must recognize the tensions between (1) the pull to understanding and dialogue, (2) the need to assess the merits of arguments that might prevail in a debate, and (3) the need for more, for a process of generating agreements on action. Indeed, as he says, mediation be hard! “Talking Circles” and the Manager’s Role Consider now a more experienced practitioner’s reflections. A Canadian architect-planner whose firm works in several countries, Larry Sherman (2005) first characterizes – and then provides us with a practical example of – a traditional strategy to promote public deliberation, the Aboriginal “talking circle” process. We consider his account not because it provides any general model of what to do but because it helps us recognize abiding problems of public deliberation in “modern” settings. Sherman begins this way: I’ll just mention the talking circle – because it’s such a contrast with the typical participatory meeting. The talking circle comes from an Aboriginal custom where the person who is holding the talking stick gets to talk, and you pass the stick consecutively around the circle, around the entire group, who need to talk to each other about their concerns. Initially, people need to build confidence in speaking and contributing to the conversation. So the “keeper of the circle” asks simply that people be brief and that they be respectful, and that they make some contribution. (2005, 9)

Here Sherman introduces an institutional form of deliberation: interdependent parties (“who need to talk to each other about their concerns”) consent to take turns under the eye of an authoritative “process manager,”

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“the keeper of the circle,” who shapes a normative agenda as he “asks simply that people be brief[,] ... respectful, and ... make some contribution” as they go around “the entire group.” Sherman identifies several common norms of public deliberation: economy (let’s not waste time), respect (let’s treat one another in a civil manner), creativity (let’s make a contribution), and inclusion (we’ll go around the entire circle; all parties will have the opportunity to talk). We hear more here too – that the keeper of the circle has a responsibility to participants, so he or she will foster the norms of economy and respect in part because parties begin with unequal capacities to participate: so we see his suggestion that people need “to build confidence in speaking,” for neither the ability nor the confidence to speak in public is shared equally by all. But Sherman has told us early on that he wished to explore a “contrast with the typical participatory meeting.” He continues: What happens is that people, generally, do not necessarily come with their complaints or their “positions,” if you will, or their postures. They will begin very modestly with some kind of view. I will often ask them to describe the community that they live in, even though they may have disagreements about that community. It could be a community of a hospital, or of a neighborhood, or of a workplace ... I’ll ask them for positive things: What do they like about the place? As they begin to pass the talking stick around, they will begin to have more and more confidence in one another – to begin to cite the problems, and to begin to deal with those problems. (2005, 10)

Here we see that the turn-taking form shapes the conversation, as does Sherman’s intervention as “the keeper of the circle,” the manager of the deliberation. When Sherman asks parties what they value in their community, he asks what value they recognize that others sitting next to them might also appreciate or share. The circular form of turn taking protects the larger group from being held hostage to a tit-for-tat escalation between two protagonists. Turn taking in this form can pre-empt a simple, direct escalation and immediately broaden both the range of participants involved and the range of perspectives and considerations initially brought to bear on a particular decision or commitment. Sherman goes on to suggest that the circle does a lot of moderating itself. They make sure that everybody is heard. The stick is passed from person to person consecutively around. You might be sitting across from someone in the circle that you take issue with, but you don’t get to answer that directly, you have to wait your turn. And in doing so, you have heard a number of other people in this community,

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in that circle, express themselves. And by the time it comes to you, whatever it was that was your initial, often defensive response is much more positive I find. I find that people make a contribution to the discussion, and go on to something else, rather than get hung up with an objection. I find that the more the stick circulates, the more confidence that people have, and the more ownership they take over whatever concern that they collectively have, until someone begins to make suggestions about what they might do about it. And then that begins to circulate around, and then they’ve advised each other about that possible solution to their problem. (2005, 10)

Parties can begin with defensiveness, Sherman suggests, that then becomes more positive and more widely informed; parties will try to “make a contribution” to the emerging conversation rather than get “hung up with an objection” to what someone (five speakers ago?) has said. But more happens, he notes, as “confidence” and “ownership” develop, and then as “someone begins to make suggestions about what they might do,” and then as the parties turn to advise one another about “possible solution[s].” So Sherman shows us a future-focused, creative, respectful, perhaps minimally argumentative form of public deliberation. We see in his characterization of the talking circles, so far, a commitment to norms of inclusion, respect, economy, even non-escalation of conflict, and we see it all, curiously, without a culture of argument – if perhaps with a culture of advice – at its core. How can this work? Sherman recalls a neighbourhood deliberation this way: I started them out by explaining the circle, and the simple rules of respect and responsibility of everyone else. The Aboriginal people have a more spiritual way of starting. They might pray, but they might also ask each other to make a gesture to wipe away their negativity. If you can start by being positive, by getting rid of your negativity, it’s a really great idea. I sometimes mention that. The light goes on and people get the message. I’m not a spiritual person, and I’m not an aboriginal person – but they get the message. I see that some people actually talk about it. They’ll say, “I came with a very negative attitude, and I’m glad you mentioned it, because here’s a positive thing that I’d like to say about my neighborhood.” They’ll say it in response to my suggestion, and they’ll talk about the positive before we get to the negative. They may ultimately come to a solution to their problem – that’s happened to me quite often – and then everyone then goes around and builds on that suggestion. It’s probably richer than when it was first suggested. (2005, 11-12)

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As I write this, I am haunted by faint echoes of Norman Vincent Peale’s phenomenally popular Power of Positive Thinking, not exactly next of kin to the reflections on power of Machiavelli, Weber, or even (regarding neighbourhood politics) Saul Alinsky. How in the world, we might wonder, can a savvy, widely experienced professional, a practitioner with decades of political and real estate experience, secularist and non-Native to boot, tell us that, “if you can start by being positive, by getting rid of your negativity, it’s a really great idea”? And how in the world of neighbourhood conflicts can it be possible that Sherman can “sometimes mention that” and see that “people get the message,” that “the light goes on”? What light is going on, and what does this have to do with contentious parties deliberating about and generating solutions to shared community problems? Sherman already suggested one answer to these questions, I believe, when he noted parties who could be “defensive” or “respectful.” Here he joins other mediators who seem all too keenly aware that nothing undermines the search for mutually satisfactory solutions like an adversarial “blame game” or, worse still, personal attack. Public deliberation, Sherman suggests, is always an iffy proposition – a contingent accomplishment – it’s never guaranteed. Spirals of disrespect will undermine participation and any cooperative search for mutually agreeable solutions. Spirals of exaggeration or posturing will do likewise. Defensiveness all around will lead to a conversation in which no one will be able to trust much that anyone says, and deliberation will suffer first of all. Against this practical background, Sherman’s appeal to get rid of “negativity” represents no popular psychology’s sleight of hand, as if putting a smiling face on a toxic waste facility to be built next door. Instead, Sherman sets out a practical argument about the performative rather than the propositional qualities of “negativity” like disrespect in deliberative processes. He teaches us that the problem that public deliberators face here involves far less the propositional truth of “you lied to me last time!” than the aggressive attack that saying that might well involve. So we come to a serious question: Are we to understand public deliberation as the back-and-forth transmission of propositional argument – something akin to a 1950s sender-receiver model of “communication” – or should we understand deliberation as performative activity in which the truth of “you lied” can be far less important than the in-your-face attack that such an utterance might well be? Of course, “negativity” can take the form of empirical claims: parties can compete to prove who bears the worse burden. Sherman’s point remains: escalating arguments, directed either to ostensible facts or to one another, do little to turn the affected parties’ attention to what they can do, to avenues of solution, to doing more than interpreting the world differently. Seen as a practical argument about the dangers of escalation, Sherman’s “getting rid of your negativity” now seems not so much quaint as stra-

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tegically wise, an element of making any public meeting sufficiently safe and promising to attract hopeful participants in the first place. Note, once again, how little this move away from the blame game has to do with argumentation as typically understood – or as typically encouraged and structured by formal public hearings (Forester 2004). Now, none of this might surprise students of public deliberation unless they neglect the performative aspects of deliberation by focusing on its propositional, justificatory dimensions. In so doing, these political analysts would be keeping the company of the medical professionals satisfied to report that “the operation was a success, but the patient died.” These analysts would reduce deliberation to a process of argumentation “on one leg,” reducing argumentation to testing and justification but simultaneously dismissing vital, pragmatic political questions about what citizens actually do together with words. Citizens can allow fear to silence them or build confidence through the recognition achieved in turn taking. They can possibly de-escalate inflammatory rhetoric here and encouraging a search for solution there. They can maybe hear not so literally but listen for significance, for consequences and consequentiality, as they listen acutely for the facts, to be sure, but for more: for the facts that matter (Forester 1999). In real time, a public deliberation is less like the substantive or textual score of a Beethoven symphony than like an actual concert performance of that symphony. So, too, our understanding of public deliberation will require no less – and perhaps no more – attention to the propositional qualities of the arguments (and the score) than to the political and psychological capacities and dispositions of the performers, including the evolving and contingent relationship building between those parties, and the institutional designs (talking circles? public hearings?) and infrastructures that stage actual deliberative performances. Let us listen one last time as Sherman summarizes his reflections on the talking circles used for deliberative purposes: I find that in the circle, the tendency is to say something that is less confrontational than you might find in other situations – less positional, because that appears to be very selfish. People tend to try to express themselves in terms of the interests of the community, or the neighborhood, or whatever they have in common. It’s the way they say it that’s so important – the way they say it, and how it comes across to other people. You can say practically the same thing and be very confrontational or be very collaborative, and the talking circle, I think, helps people to be more collaborative. (2005, 13)

Sherman draws together several lines of our argument here. His focus, once more, is on what we might call deliberative infrastructures: the normative

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organization of conversation that produces more or less confrontation, more or less escalation, more or less collaboration, more or less deference to prevailing norms, more or less independence of thought and action, and so on. What matters here is the suggestion that our analyses of public deliberations must focus not only on the decisions or agreements they produce but also on the actual political activities through which citizens seek to remake their worlds together. Or, as Sherman reminds us, “it’s the way they say it that’s so important ... You can say practically the same thing and be very confrontational or be very collaborative.” The forms of our future public deliberations will shape which futures we create – not only in “decisions” but also in working relationships crucial to implementing any decisions in practice. Summing Up So liberal generosity might fuel an apparently tolerant regard for the other even as it might undermine a search for creative new options, for not-yetimagined “solutions” and relationships with others. Furthermore, generosity of regard can mean very different things: Do we wish to foster dialogues that produce understanding of one another’s views? Do we wish to moderate debates to produce a clear view of better and worse, more and less justified arguments? Or do we wish for more than understanding, for more too than the sharpening of argument, and instead for agreements on action that will carry affected citizens forward together? Sherman’s observations help us here. What Sherman sees from his experience, perhaps experience that Brown has simply not yet had, is that his mediating role can matter, and what he says can matter, as does his asking parties not just to treat one another respectfully but also to try to make a contribution to their shared future world. Sherman suggests to us that the talking circles encourage a breadth of perspective, a building of trust and confidence, through their turn-taking dialogue, a kind of scrutiny and collective advice giving to refine proposals that participants make, that may well provide lessons for designers and sponsors of many other forms of public deliberation. Crucially, too, Sherman suggests that in his use of the talking circles he has tried not to feed confrontation but to foster creativity and collaboration. In doing so, he offers Brown a way forward so that mediation need not be so “hard,” so that Brown might not have to “lean” to “either side,” so that Brown might listen no less well, might scrutinize the views of either side no less carefully, but might in addition foster deliberative settings in which the parties will not only listen and debate but also collaborate to create proposals, to make a contribution, to propose viable courses of action that might reconcile their differences.

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David Kahane: From Practice to Theory The most striking lesson deliberative democratic theorists can draw from Brown’s and Sherman’s practice stories is that of the complex heterogeneity of public discourses, in particular the importance of attending to the dense interconnections between propositional and performative elements of argumentation. This distinction between propositional and performative elements, and how it plays out in the two narratives above, usefully frames a series of debates and issues in recent deliberative democratic theory. In what follows, I argue that the practice stories help us see how the interconnections between the propositional and the performative in democratic dialogue reframe a set of theoretical challenges to the Habermasian analysis of political deliberation, casting light on debates around deliberative democracy, recognition, the requirements of reciprocity, and the virtues required of democratic citizens. Propositional and the Performative in Deliberative Democracy Unravelling Brown’s narrative, Forester draws our attention to the complex relationship between the propositional content of deliberative utterances (the “what” that a speaker claims) and the performative character of the argument (the complex effects of the claim, including “how” it is presented). Much of the ferment within deliberative democratic theory in recent years has involved this relationship, with worries expressed about democratic theorists giving undue primacy to propositional content in their analyses of deliberation. Habermas provides an important illustration of this emphasis on the propositional in deliberative democratic theory – important both because of his wide-ranging influence in the development of the field and because he makes clear the perceived stakes of focusing on propositional content over performative accomplishment, illocutionary and perlocutionary character. His account of ethical and political discourse, developed most explicitly since his Theory of Communicative Action (1985, 1988), articulates norms of argumentation that Habermas takes to be latent in the very practice of communication. In speaking, we always implicitly make validity claims – for instance, that our normative statements can be justified without recourse to coercion, that we are sincere, that our claims about the world can be shown to be true – and the warrant of these claims is sustained by our implicit willingness to support them with good reasons. Habermas argues that these implicit commitments, entered into when we speak to others, counterfactually refer to the conditions under which validity claims could be vindicated on the basis of good reasons alone. In this counterfactual ideal of reasoned justification, any competent person is free to introduce and question assertions and to express attitudes, desires, and needs without

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constraint by internal or external coercion; deliberation proceeds for as long as is necessary to yield decisions based on “the unforced force of the better argument.” Habermas submits that by grounding these robust norms of reason giving in the structure of speech itself, he is able to vindicate and sustain the critical gains of the Enlightenment, without recourse to the sorts of metaphysical claims that rendered Kant’s project unsustainable. Habermas thus provides a proceduralist account of good reasoning and a basis for assessing contested moral issues in a non-arbitrary way. And it is with his resistance to arbitrariness that we discover – in his thought and that of other deliberative democrats – why they believe it is so important to emphasize the propositional over the performative. Many deliberative democrats believe that focusing on propositional argumentation enables us to assess moral disagreements, and to justify fundamental constitutional rules and norms, without giving in to the arbitrary play of power or the contingencies of culturally specific understandings; we retain a basis for distinguishing between what in fact persuades people and what ought to persuade them. So Habermas’ emphasis on propositional dimensions of moral and political argumentation goes hand in hand with his critiques of poststructuralistinflected political philosophy and moral relativism. According to this criticism, the poststructuralist, in construing language as constituted through the play of difference between signs, may offer nuanced accounts of the relations of power that inform such play. She is, however, unable to offer any account of meaning beyond such relations and hence any reasons for acting beyond the defence of particular perspectives and interests. In a parallel fashion, the moral relativist can appeal only to norms constituted through culture as the basis for his moral motivation and, when faced with irreducible conflicting cultural norms, must give up the hope of shared epistemic terrain on which resolution might be grounded.2 Although Habermas concedes that many ethical and political decisions necessarily index to culturally specific understandings or internal psychological states, certain morally and politically crucial norms (for example, principles of reasoned justification implicit in our very practices of communication, principles embodied in the constitutional essentials of a liberal democratic state) have, by contrast, a universal warrant; we get to these good reasons by stripping away the contingencies of emotion, of rhetoric, of form, to get to propositional content. Habermas’ parsing of political argumentation in terms of validity claims evaluated for propositional content has been widely contested.3 Critics such as Melissa Williams (1998) and Iris Young (1996) argue that sidelining emotion and rhetoric in the name of impartiality in fact privileges the rhetorical and emotional styles of dominant groups, which appear unmarked and neutral in comparison with those of the marginalized. Young is particularly

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concerned with the disproportionate effects of this narrow construal of discourse on marginalized groups, whose contributions to deliberation tend to be coded as irrational, emotional, or unreasonable from the standpoint of dominant (white, male, European) norms. Williams and Young affirm a more capacious definition of reason giving, one that includes passion and rhetoric; they draw attention to the legitimate argumentative work these performative elements accomplish, given the nuanced micropolitics of deliberation. Such responses do not sit well with deliberative democrats committed to the (modified) Enlightenment universalism of Habermas’ approach. Seyla Benhabib, for example, worries that Young’s attempt to transform the language of the rule of law into a more partial, affective, and situated mode of communication would have the consequence of inducing arbitrariness, for who can tell how far the power of a greeting can reach? It would further create capriciousness – what about those who simply cannot understand my story? It would limit rather than enhance social justice because rhetoric moves people and achieves results without having to render an account of the bases upon which it induces people to engage in certain courses of action rather than others. (2002, 83)

For many deliberative democrats, then, the rational character of discourses is precisely marked by the separation of propositional content from other influences on performative effects, which constitutes a key achievement of modernity by permitting reasoned consensus on moral claims. Brown’s narrative recasts this back and forth between theorists. When Habermasians and their critics disagree on whether we can disaggregate propositional content from other influences on performative effects, part of what is at stake is the place that rhetoric and emotion – the “how” of argumentation – should have in normative conceptions of democratic decision making (i.e., whether we should seek to get beneath them so that we can assess the warrant of underlying propositions or allow ourselves to be moved by presentation as well as propositional content). Critics of Habermas are likely to take the argument one step further and suggest that the “what” and the “how” are inseparable in communication; the type of communicative action that Habermasians might style as solely propositional in character will always, “on the ground,” have rhetorical and emotional valence. Norms of reasonable speech, in this view, tend to escape scrutiny, when in fact they themselves constitute a certain privileged style that might equally be described as “rhetorical” or “emotional.” If this suggestion is right and form and content actually cannot be disentangled, then Brown’s dilemma draws attention to the impossibility of enacting Habermas’ model in real deliberative situations, which in turn explains some of Brown’s experience. The

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fusion of the propositional and the performative is inevitable and is experienced by the mediator as inevitable. In Forester’s words, we need to understand “argumentation as simultaneously making claims and enacting relationships of regard.” Thus, the mediator who tries not to “lean” one way or the other, who tries to separate the contents of arguments in ways that sideline their performative components, is unlikely to do a very good job for this theoretical reason: what looks like a “proposition” that comes accompanied with no “rhetoric” is a certain style of argumentation among others. To find such claims compelling – more compelling than those couched in the more overtly emotional styles that Young identifies – is to identify with a certain form of subjectivity. It is, in other words, to “lean” without even being aware of one’s own bias. Brown’s skepticism about value neutrality may reflect an implicit grasp of this point. Certainly, there are many developed examples in the literature to support it. Feminists, for example, have often commented that the delegitimation and lack of recognition of women’s voices create a double bind: either modulate one’s participation in dialogue to conform to the expectations of the “man of reason,” or introduce affect, comportment, and inflections that risk being caricatured as over-emotional (Bickford 1996; Lloyd 1984; Young 1996). These styles of communication are not idiosyncratically individual but stem from social group memberships that are equally deserving of recognition in deliberative contexts. Furthermore, styles of embodiment, inflection, and affect emerge from ongoing relations of power: struggles to separate propositional content from performativity often miss the reality that one’s performative style reflects a history. This history, for example, may be one of being ignored, or mocked, or told that one is “making a fuss about nothing,” or that one is delusional or paranoid. The repeated denial of the social reality of marginalized group members, then, itself establishes an ethical demand for recognition in deliberative contexts. This is what Forester attributes to Brown: the belief that to see things from the perspective of a particular constituency (or individual) will require an understanding of its performative strategies and their history and maybe even a kind of identification with the particular difficulties attaching to communication in a context of power. Recognition and the Democratic Ethos The fusion of propositional and performative dimensions of argumentation has implications for a number of current debates in deliberative democratic theory, especially as they revolve around issues of mutual recognition. There are implications, first of all, for debates over whether democratic deliberation should require that reasons offered by participants be (in principle at least) epistemically accessible to all: this issue is often framed in terms of norms of “prescindment” in public deliberation and the requirements of

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deliberative “reciprocity” (see Brighouse and Weithman in this volume; see also Eberle 2002; Gutmann and Thompson 1996; and Perry 1991). Advocates of strong versions of the norm of reciprocity – James Boettcher (2005) calls them “strong inclusionists” – would, for example, bar appeal to revealed religious truth as a public reason (have citizens “prescind” from offering this kind of reason) because its propositional content cannot be reasonably assessed by others and so is “unreasonable.” The practice stories above not only remind us of the dangers of this sort of detachment of argumentation from recognition but complicate any sharp distinction between these elements of argumentation, since “the force of the better argument” will always be connected to performative dimensions of its expression (see Fish 1999 and Galston 1999). Deliberative democrats do, in fact, increasingly acknowledge the importance of recognition as a component of deliberative process and of a deliberative ethos, but this turn to issues of recognition, including by Habermas himself (1998), may still be unduly attached to distinctions between the propositional and the performative. Amanda Coen (2006) usefully distinguishes between deliberative democratic theories that focus their normative attention on the justice of decision procedures and outcomes and those that treat mutual recognition as a normative goal in its own right, derived from a basic commitment to equal respect for persons. Within outcome-oriented approaches (which are dominant in deliberative democratic theory, including that of Habermas), deliberation ensures (both politically and epistemically) that decisions take due account of the range of positions, understood propositionally, so that participants can give their warranted assent to decisions even when their own position does not prevail. Within outcomeoriented approaches, strategies for recognizing other participants in deliberative contexts may be central to ensuring just outcomes, for without recognition certain parties may never even consider entering conversations that Habermasians see as procedurally necessary for achieving just outcomes or may be denied an impartial hearing. From this outcome-oriented perspective, some of the mediation and facilitation techniques discussed in the practice stories above may have real value: for example, Sherman’s “talking stick” encourages identification with a broader perspective than that of the individual – in part, perhaps, by compelling recognition of its holder. No longer struggling to gain a voice but being unconditionally granted space to speak that cannot be challenged until the stick is relinquished, the holder is recognized in a new way. This parsing of legitimacy in terms of outcomes that fairly adjudicate between the various “whats” of positions leaves aside, though, the potentially independent value of relations of regard and recognition. To put it in normative terms, as Coen does, equal respect is a central deliberative democratic norm, one furthered through empathy, recognition, and solidarity as well

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as through well-grounded reasoning aimed at punctual decision outcomes. Thus, finally, the costs of privileging propositional content in deliberation become clear: in practice, the prospects of fruitful agreement and common action are importantly shaped by the performative dimension and by forms of empathy, recognition, and solidarity that build on it. Yet the concerns of theorists such as Habermas and Benhabib loom over this blending of epistemic judgment with recognition, which undermines our ability to straightforwardly sort out the warrant of claims from the (culturally inflected) “how” of their presentation. The effects come through in Forester’s reflections above on “the problem of liberal generosity.” In Brown’s narrative, we see how tolerance and respect for the standpoint of an “other” in dialogue can become deference, a reluctance to push, to challenge, to explore uncomfortable grounds for joint decision and action. Moreover, the tension is not only between recognition and a willingness to challenge but also between recognition and the ability to judge.4 Insofar as one retains a place for propositional argumentation in an account of deliberation, it will involve judging the relative strengths of arguments. But what does it mean to recognize “how it might be reasonable to believe and argue exactly that way” at the same time as judging “that way” to be the weaker argument? Once we rule out an epistemology that offers us the secure ground of the propositional and the commensurable, the proper response to such dilemmas seems to lie not in prior, analytical distinctions between elements of argumentation but in the virtues and capacities that deliberators are able to deploy in winnowing through arguments in particular contexts. So we start to see connections between deliberative democratic theory and a current of political thought often overlooked by deliberative democrats: discussions of virtue, ethos, and citizen character. These discussions shift our attention from deontological and procedural treatments of public reasonableness to qualities of character that allow democratic agents to navigate skilfully and judge well in the muddy waters of public deliberation. Forester’s practice stories show the importance of what to date has been a minor current in deliberative democratic theory itself: attempts to reframe debates around judgment and process in democratic deliberation in terms of Aristotelian rhetoric and virtue ethics (O’Neill 2002), citizen virtues (Galston 1991; Kahane 1996; Kymlicka and Norman 1994; Macedo 1990), citizen competence (Elkin and Soltan 1999; Kahane 2000), or an “ethos of pluralization” (Connolly 1995). These diverse literatures by no means resolve the tensions foregrounded by the problem of liberal generosity, but they do approach it through the usefully different frame of virtue and character. Of course, even if these character-based accounts of deliberative judgment are fruitful, they raise a further, vexing set of questions around how the right kinds of deliberative character are to be cultivated; one kind of answer, offered variously by Aristotle (1984; see also Burnyeat 1980), John Stuart Mill

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(1991), and Alexis de Tocqueville (2000), suggests that deliberative virtues develop through participation in the right kinds of democratic processes and institutions.5 This brings us to a further set of connections and dissonances between the above practice stories and contemporary deliberative democratic theory, around the fine-grained design of deliberative processes and practices. Concrete Forms of Public Deliberation I have been arguing that details of Brown’s and Sherman’s practice stories help reframe a series of debates in contemporary deliberative democratic theory, especially ones that involve connections between propositional and performative elements of deliberation. It seems to me that the most insistent lesson of Forester’s part of this chapter, however, is how dramatically the terms of theoretical debates about democratic deliberation may be reconfigured by attention to the practical and normative implications of the fine grain of deliberative process. There has been, for most of the past thirty years, a striking disconnect between the deliberative democratic paradigm as it has developed in normative political philosophy and as it has oriented actual democratic experimentation in institutions such as Deliberative Opinion Polls (discussed in the previous two chapters), 21st Century Town Halls (which gather hundreds or thousands of citizens in a single space to discuss a particular issue, with deliberation in small groups conveyed to the assembly using computer technologies), Citizens’ Juries (which allow small groups to deliberate on a policy issue over an extended period), and countless other experiments in public consultation and deliberation. As dialogue between theorists and practitioners of deliberative democracy has deepened in the past four or five years,6 it has become increasingly clear that issues philosophers have attempted to address through analytical and conceptual work (e.g., the role of recognition in democratic deliberation and the distinction between propositional and performative elements of argumentation) are rendered both more complex and in many cases more tractable in the context of concrete decisions about deliberative democratic process and process design. In what follows, I offer three examples of how nuances of process design shift the ground of theoretical debates: this is true of debates around (1) the kinds of trust, recognition, and solidarity required for legitimate deliberative democratic practices and institutions, (2) the forms of understanding and agreement required by deliberative democratic ideals, and (3) the capacities required by participants in (facilitated) deliberation. 1

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(Bohman 1996; Dryzek 2000; Habermas 1996), especially in connection with issues of cultural pluralism and national belonging (Benhabib 2002; Habermas 2001a). However, these philosophical debates may underrate the extent to which the design of deliberative processes itself can shape the significance of prior affective or cultural connections, so that the effort to establish this significance in the abstract begins to look misguided or forlorn. Consider, for example, the talking circles used by Sherman. The circle process sets a particular arc to collective deliberation: it enacts norms of inclusion, recognizes and adjusts for unequal capacities at formal deliberation, and discourages a culture of argument in favour of trust building and collaboration. From Sherman’s description, his talking circles start modestly, with recognition of parties’ values in ways that build trust; with this trust established, they seek to identify problems and find creative solutions, avoiding position taking and a culture of argument. In this example, we begin to see how the fine weave of deliberative procedure – the sequence of speaking, the configuration of spaces, the invitation of narratives, and so on – can determine possibilities for understanding and agreement. Where theorists have tended to trace the entailments of cultural pluralism and national belonging for trust, recognition, and solidarity – and of trust, recognition, and solidarity for deliberative democratic possibility – attention to deliberative practice shows that these dynamics are more fungible than our abstract, philosophical arguments might imply and that it is in the details of deliberative process that deliberative democratic possibilities are most importantly established. 2

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Forester, in his interpretation of Brown’s and Sherman’s narratives, suggests the need to distinguish between three modes of public discourse: dialogue (which focuses on mutual recognition, on understanding the other from her own point of view), debate (focused on the exchange of reasons and the evaluation of propositional content), and negotiation (which searches for creative, mutually acceptable outcomes to common problems). He points to the chaos that can ensue when participants in public discourses have differing understandings of the mode or goal of their conversations, and he notes that some public conversations specifically foreground one mode of discourse (e.g., dialogue) over others. This tripartite distinction can at best be provisional given the connections between propositional and performative elements of argumentation outlined above; however, versions of this distinction are widely used among designers of democratic and consultative processes because of the need for clarity about goals noted by Forester and because dialogue, deliberation, and negotiation can be sequenced and

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related in so many different ways, with varied effects on outcomes. Insofar as the distinction has counterparts in deliberative democratic theory, they have tended to involve categorical distinctions rather than more complex analyses of how these facets of democratic process interweave and overlap. Habermas, for example, distinguishes between moral discourses (involving universalizable interests), ethical discourses (involving value orientations shared by a particular group), and pragmatic discourses (which weigh means to achieve prior value preferences and interests); deliberation around universalizable interests is the privileged mode for moral discourses, whereas bargaining and negotiation are legitimate only in pragmatic discourses (Habermas 1996, 157-68). Yet these abstract categorizations seem unhelpful given that actual democratic conversations blend shared and divergent interests, discussion of means and ends, and moral and pragmatic claims (Leydet 2005). Rather than distinguishing categorically between these elements of democratic practice, it seems more important to consider how the design of democratic processes addresses each facet, in keeping with norms of justice and legitimacy. 3

The narratives in the first part of this chapter are from facilitators and mediators, central figures in almost all structured deliberative democratic exercises. Yet the figure of the facilitator or mediator is strikingly absent from most deliberative democratic theory. Indeed, even Fishkin’s detailed, application-oriented discussions of democratic design give no sustained attention to the modes of facilitation used within Deliberative Opinion Polls. This is an odd and illuminating omission: Sherman reminds us that “public deliberations are unlikely to be self-administering,” yet deliberative democratic theory gives scant attention to the terms and modes of this administration. This omission is traceable not only to the abstractness of much deliberative democratic theory but also to the emphasis, traced above, on propositional argumentation. Given an emphasis on propositional content, the crucial aim of deliberative processes is to make sure that all relevant arguments are aired, so that they can be collectively assessed and an outcome established on the basis of the force of the better argument. Crucial, in this view, is that deliberation include the range of affected parties, the free exchange of reasons, and an orientation to agreement based on reasons. If we emphasize instead the interfusion of propositional and performative elements of argumentation, and the close links between modes of expression and relations of power, then facilitators and mediators come to the fore as those entrusted with shaping processes and interactions to address differences in communicative style and differences of power (Bryan 1992; LeBaron 2004).

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The role of mediators and facilitators in deliberative democratic processes introduces important differentiations when it comes to the attitudes and capacities expected of participants. One set of questions – much discussed in literatures on alternative dispute resolution and apparent in Brown’s narrative above – involves the “neutrality” of the facilitator. To what extent should commitments to balancing power, facilitating intercultural understanding, or ensuring just outcomes inform facilitators’ practice? To what extent do such normative commitments compromise – or perhaps constitute – a facilitator’s commitment to procedural fairness? And should facilitators be outsiders to a particular debate, or does this notion of third-party neutrality itself disguise a culturally particular understanding of justice? Most important to notice in the current context is that these crucial elements in establishing the justice of deliberative processes are virtually untouched in the vast literature on deliberative democratic theory yet are central to establishing the fairness of actual democratic processes (Forester 1999). Answers to these questions about the facilitator’s role will in turn have extensive implications for expectations of participants in dialogue, deliberation, and negotiation, since these parts of a facilitator’s role are meant precisely to change the normative valence of the commitments, attitudes, and capacities that participants bring with them to a democratic process. For example, whereas the facilitator strives for non-partisanship, deliberators may by definition be partisan; this asymmetry defines the facilitator’s role in crafting a discussion that tempers or frames partisanship to allow a just solution. In deliberative democratic theory, which omits the role of the facilitator, deliberators themselves are expected to carry the burdens of reflexivity, dispassion, and reasonableness. Bringing in the role of the mediator or facilitator might, on the one hand, allow for less demanding accounts of the qualities needed of deliberators. On the other hand, once we bring in this role, we may see the facilitator as exemplary of the qualities that participants in discourse should also have: for example, all participants should perhaps strive for sufficient independence from their value commitments to be able to recognize unforeseen possibilities for shared understanding and action. I argued above that the fusion of propositional and performative aspects of argumentation shifts our attention from deontological and procedural treatments of criteria of public reasonableness to accounts of deliberative judgment, character, and virtue. The role of the mediator or facilitator introduces a level of differentiation to these latter accounts, allowing for a division of labour and perhaps (in non-ideal contexts) for a more workaday understanding of deliberative democratic citizens’ virtues and capacities.

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Conclusion The first part of this chapter models a critical phenomenology of practices of planning and public dispute resolution, perching on planners’ and mediators’ shoulders as they deal with the complex tensions and differences typical of public deliberations. These “practice stories” reveal the complex decisions involved in designing democratic deliberations and how these decisions, combined with the work of mediation and facilitation itself, establish possibilities for recognition, understanding, and agreement. The second part of the chapter connects these lessons from practice stories with debates in deliberative democratic theory, showing how the cross-fertilization of performative and propositional elements of argumentation, brought out by the practice stories, has extensive implications for normative philosophical work. We hope that the work of this chapter both contributes to existing theory-practice dialogues around the micropolitics of deliberative democracy and convinces readers of this volume of just how critical these dialogues are to the development of the field.





Notes 1 For examples, see Gastil and Levine (2005) and the websites of the Canadian Community for Dialogue and Deliberation (www.c2d2.ca), the Deliberative Democracy Consortium (www.deliberative-democracy.net), and the National Coalition for Dialogue and Deliberation (www.thataway.org). 2 For a related argument, see Valadez in this volume. 3 See, for example, Bohman (1996), Fraser (1993), Mouffe (2000), Sanders (1997), Williams (2000), and Young (2002). 4 For a theoretical unpacking of these concerns, see McBride (2005). 5 Another kind of answer, of course, involves educational institutions, discussed in the first section of this volume. 6 A number of recent articles and books bridge the empirical and the normative (e.g., Cornwall 2002, 2008; Fung 2003; Fung and Wright 2003; Gastil and Levine 2005; Sunstein 2002), and a series of organizations has begun to bring together researchers and practitioners (key examples include the Researchers and Practitioners Network of the US-based Deliberative Democracy Consortium, http://www.deliberative-democracy.net/; the 2005 MIT Workshop on Deliberative Democracy and Dispute Resolution, http://stellar.mit.edu/S/project/ deliberativedemocracy/; and the Development Research Center on Citizenship, Participation, and Accountability, http://www.drc-citizenship.org/).

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Tobin, Jeffrey. 1994. “Cultural Construction and Native Nationalism: Report from the Hawaiian Front.” Boundary 2, 21: 111-13. Tocqueville, Alexis de. 2000 [1835-40]. Democracy in America. Trans. and ed. Harvey C. Mansfield and Delba Winthrop. Chicago: University of Chicago Press. Tully, James. 1995. Strange Multiplicity: Constitutionalism in an Age of Diversity. Montreal: McGill-Queen’s University Press. –. 2000a. “Aboriginal Peoples: Negotiating Reconciliation.” In Canadian Politics, 3rd ed., ed. Alain-G. Gagnon and James Bickerton, 413-42. Peterborough: Broadview Press. –. 2000b. “Reconsidering the BC Treaty Process.” Unpublished paper. (On file with the author.) –. 2001a. “Introduction.” In Multinational Democracies, ed. James Tully and Alain-G. Gagnon, 1-34. Cambridge, UK: Cambridge University Press. –. 2001b. “The Struggles of Indigenous Peoples for and of Freedom.” In Political Theory and the Rights of Indigenous Peoples, ed. Duncan Ivison, Paul Patton, and Will Sanders. Cambridge, UK: University of Cambridge Press. –. 2002. “The Unfreedom of the Moderns in Comparison to Their Ideals of Constitutional Democracy.” Modern Law Review 65, 2: 204-28. –. 2004. “Recognition and Dialogue: The Emergence of a New Field.” Critical Review of International Social and Political Philosophy 7, 3: 84-106. Turpel, Mary Ellen. 1989-90. “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences.” In Canadian Human Rights Yearbook, 3-45. Toronto: Carswell. UN General Assembly. 1948. Universal Declaration of Human Rights. G.A. res. 217A (III), UN Doc A/810, 71. Valadez, Jorge M. 2001. Deliberative Democracy, Political Legitimacy, and Self-Determination in Multicultural Societies. Boulder: Westview Press. Vlastos, Gregory. 1991. Socrates, Ironist and Moral Philosopher. Ithaca: Cornell University Press. Waldron, Jeremy. 2002a. God, Locke, and Equality. Cambridge, UK: Cambridge University Press. –. 2002b. “Redressing Historic Injustice.” University of Toronto Law Journal 52, 1: 135-60. Walzer, Michael. 1983. Spheres of Justice: A Defence of Pluralism and Equality. New York: Basic Books. Weber, Max. 1959. Le savant et le politique. Paris: Plon. –. 1971 [1956]. Économie et société. Vols. 1 and 2. Paris: Plon. Weiler, J.H. 1998. “An ‘Ever Closer Union’ in Need of a Human Rights Policy.” European Journal of International Law 9: 658-723. Weinstock, Daniel. 1999. “Le problème de la boîte de Pandore.” In Nationalité, citoyenneté, et solidarité, ed. Michel Seymour, 17-40. Montréal: Liber. –. 2001. “Saving Democracy from Deliberation.” In Canadian Political Philosophy, ed. Ronald Beiner and Wayne Norman, 78-91. Don Mills: Oxford University Press. –. 2002. “Le pluralisme axiologique en philosophie politique contemporaine.” In Diversité humaine: Démocratie, multiculturalisme, et citoyenneté, ed. Lukas K. Sosoe, 67-81. Paris/ Sainte-Foy: L’Harmattan/Les Presses de l’Université Laval. Weithman, Paul. 2002. Religion and the Obligations of Citizenship. Cambridge, UK: Cambridge University Press. –. 2005. “Deliberative Character.” Journal of Political Philosophy 13: 263-83. Williams, Bernard. 1987. “Ethical Consistency.” In Moral Dilemmas, ed. Christopher W. Gowans, 115-37. New York: Oxford University Press. –. 2002. Truth and Truthfulness: An Essay in Genealogy. Princeton: Princeton University Press. –. 2005. In the Beginning Was the Deed: Realism and Moralism in Political Argument. Princeton: Princeton University Press. Williams, Melissa. 1998. Voice, Trust, and Memory: Marginalized Groups and the Failings of Liberal Representation. Princeton: Princeton University Press.

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–. 2000. “The Uneasy Alliance of Group Representation and Deliberative Democracy.” In Citizenship in Diverse Societies, ed. Will Kymlicka and Wayne Norman, 124-54. Oxford: Oxford University Press. Williams, Robert A., Jr. 1999. The American Indian in Western Legal Thought: The Discourses of Conquest. New York: Oxford University Press. Young, Iris. 1990. Justice and the Politics of Difference. Princeton: Princeton University Press. –. 1996. “Communication and the Other: Beyond Deliberative Democracy.” In Democracy and Difference: Contesting the Boundaries of the Political, ed. Seyla Benhabib, 120-35. Princeton: Princeton University Press. –. 2002. Inclusion and Democracy. Oxford: Oxford University Press.

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Contributors

James Bohman is Danforth Professor in the Humanities at St. Louis University. His books include Democracy across Borders (MIT, 2007) and Public Deliberation: Pluralism, Complexity, and Democracy (MIT, 1996). Harry Brighouse is Professor of Philosophy and Affiliate Professor of Educational Policy Studies at University of Wisconsin. He is the author of On Education (Routledge, 2006) and of articles in political philosophy, philosophy of education, and on educational policy issues. He is currently working with Adam Swift on a book entitled Family Values to be published by Princeton University Press, and is co-director, with Michael McPherson, of the Spencer Foundation’s Initiative on Philosophy in Educational Policy and Practice. Simone Chambers is Professor of Political Science at the University of Toronto. She is the author of Reasonable Democracy: Jürgen Habermas and the Politics of Discourse (Cornell, 1996), as well as numerous articles in political philosophy, and the editor (with Will Kymlicka) of Alternative Conceptions of Civil Society (Princeton, 2001). Glen Coulthard is Assistant Professor in the First Nations Studies Program and Department of Political Science at the University of British Columbia. His research interests include contemporary political theory, indigenous politics, and radical social and political thought. His current writing project examines the relationship between recognition and freedom in light of the work of anti-colonial scholar and activist Frantz Fanon. Glen is a member of the Yellowknives Dene First Nation. James Fishkin is the Janet M. Peck Chair in International Communication and Director of the Center for Deliberative Democracy at Stanford University. He is the author of Democracy and Deliberation: New Directions for Democratic

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Reform (Yale, 1991), The Dialogue of Justice (Yale, 1992), and The Voice of the People: Public Opinion and Democracy (Yale, 1995). His most recent book is When the People Speak: Deliberative Democracy and Public Consultation (Oxford, 2009). He is best known for developing Deliberative Polling, a practice of public consultation that employs random samples of the citizenry to explore how opinions would change if the citizens were more informed. Professor Fishkin and his collaborators have conducted Deliberative Polls in the United States, Britain, Australia, Denmark, Bulgaria, China, Italy, Thailand, Brazil, and other countries. John Forester is Professor of City and Regional Planning at Cornell University. His books include Planning in the Face of Power (California, 1989), Making Equity Planning Work: Leadership in the Public Sector (with Norman Krumholz, Temple, 1990), Critical Theory, Public Policy, and Planning Practice (SUNY, 1993), and The Deliberative Practitioner (MIT, 1999). He is working on a book tentatively entitled Dealing with Difference: The Drama of Mediation, which explores the challenges of participatory planning processes. Duncan Ivison is Professor of Political Philosophy in the Department of Philosophy at the University of Sydney. He is the author of The Self at Liberty: Political Argument and the Arts of Government (Cornell, 1997), Postcolonial Liberalism (Cambridge, 2002), and Rights (Acumen, 2008). He is the editor, with Paul Patton and Will Sanders, of Political Theory and the Rights of Indigenous Peoples (Cambridge, 2000). David Kahane is Associate Professor of Political Science and Vargo Distinguished Teaching Chair at the University of Alberta. He co-edited Intercultural Dispute Resolution in Aboriginal Contexts: Land Claims, Treaties, and SelfGovernment Agreements (with Cathy Bell, UBC, 2003), and he has published articles in the Canadian Journal of Political Science, Journal of Political Philosophy, Negotiation Journal, Philosophiques, and Social Theory and Practice. Dominique Leydet is Associate Professor of Philosophy at the Université du Québec à Montréal. Her articles include “Citizenship” in the Stanford Encyclopedia of Philosophy (winter 2006 edition); “Compromise and Public Debate in Processes of Constitutional Reform: The Canadian Case” in Social Science Information (2004); and “Lifeboat” in Canadian Political Philosophy: Contemporary Perspectives (2002). Micheline Milot is Professor of Sociology at the Université du Québec à Montréal. Her publications include Une religion à transmettre? (Presses de l’Université Laval, 1991); Les croyances des Québécois (with R. Lemieux, SainteFoy, 1992); Laïcité dans le Nouveau monde: Le cas du Québec (Brepols, 2002),

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and La laïcité en 25 questions (Novalis, 2008). She has also edited numerous volumes, including Éducation, religion, et démocratie (with F. Ouellet, Harmattan, 1997), La religion ... après le désenchantement du monde (Cahiers de recherche sociologique, 2000), La laïcité au Québec et en France (Bulletin d’histoire politique, 2005). Henry S. Richardson is Professor of Philosophy at Georgetown University. His book, Democratic Autonomy: Public Reasoning about the Ends of Policy (Oxford, 2002), received the Herbert A. Simon Best Book Award in Public Administration and the David Easton Award in the Foundations of Political Theory. Together with Paul Weithman, he edited the five-volume collection The Philosophy of Rawls (Garland, 1999). He is currently the editor of Ethics. Jorge M. Valadez is Associate Professor of Philosophy at Our Lady of the Lake University in San Antonio, Texas. He is the author of Deliberative Democracy, Political Legitimacy, and Self-Determination in Multicultural Societies (Westview, 2000) and over twenty articles and reviews in political philosophy and Latin American philosophy. Daniel Weinstock holds the Canada Research Chair in Ethics and Political Philosophy in the Department of Philosophy of the Université de Montréal. He is also the Founding Director of the Centre de recherche en éthique de l’Université de Montréal. He has published close to 100 academic articles on a range of issues, including multiculturalism, nationalism, and democratic theory. Recent work has appeared in Episteme, Theory and Research in Education, Journal of Medicine and Philosophy, Metaphilosophy, and Nomos. Paul Weithman is Professor of Philosophy at the University of Notre Dame. He is the co-editor of Religion and Contemporary Liberalism (Notre Dame, 1997) and the co-editor (with Henry S. Richardson) of the five-volume collection The Philosophy of Rawls. He is the author of Religion and the Obligations of Citizenship (Cambridge, 2002) and of more than forty articles in political philosophy, ethics, and medieval political theory. Melissa Williams is Professor of Political Science at the University of Toronto. She is the author of Voice, Trust, and Memory: Marginalized Groups and the Failings of Liberal Representation (Princeton, 1998) and the co-editor (with Patrick Hanafin) of Identity, Rights, and Constitutional Transformation (Ashgate, 1999). She serves as editor of NOMOS, the yearbook of the American Society for Political and Legal Philosophy; forthcoming volumes include Political Exclusion and Domination and Humanitarian Intervention.

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Index

Aboriginal peoples. See Australia: Aboriginal peoples; indigenous peoples; Native peoples of Canada accountability: and deliberative democracy, 121; and democratic minimum, 98-99; public reason and, 78; and reconciliation process, 128 Ackerman, Bruce, 17, 90n5, 91n20, 206-7 Acton, John Dahlberg-Acton, Lord, 177, 178, 181, 182 Addams, Jane, 92 Alfred, Taiaiake, 148 The American Commonwealth (Bryce), 181 AmericaSpeaks, 16, 189 Angus, Ian, 154n2 anti-essentialism, 139; and cultural identity, 140; emancipatory potential of, 16, 142; essentialist, 140; and inequality, 142; and recognition, 149 apartheid, 124 Arendt, Hannah, 93, 98, 108 argumentation, bargaining vs., 80; and common good, 80; deliberative democracy and, 2; detachment and, 212; emotion in, 222-23; empathy and, 212; interest vs., 9; norms of, 221; perspectives vs., 211, 213; propositional vs. performative in, 17, 209, 211-12, 221, 222-25, 228, 229; and public reason, 80; recognition vs., 225; respect in, 213; rhetoric in, 222-23 Aristotle, 179-80, 226 Arrow, Kenneth, 183-84, 196, 197-98 Asch, Michael, 152 assimilation: of Australian Aboriginal peoples, 15, 124, 126; of Canadian Native peoples, 150; of Mexican indigenous peoples, 162 atheism, 29, 33n4

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Australia: Aboriginal Land Rights (Northern Territory) Act, 127; Aboriginal peoples, 15, 124-32; Aboriginal Provi­ sional Government, 127; Aboriginal Tent Embassy, 127; Aboriginal and Torres Strait Islander Commission (ATSIC), 127; Australians for Reconciliation and Native Title, 129; common law in, 125, 127; compulsory voting in, 206; constitution, 126, 130; Council for Aboriginal Reconciliation (CAR), 15, 127, 128-29; emergency intervention in, 13031; Issues Deliberation Australia, 137n15; National Aboriginal Conference, 127; Native Title Act (NTA), 127, 128; proportional representation in, 135; Racial Discrimination Act, 131-32; reconciliation process in, 116, 124-33, 135; referendum in, 126; Senate, 135 autonomy, cities and, 102, 103; critical reflection on views and, 59-60; education and, 44, 45, 59, 62 bargaining, closed negotiation and, 80, 87, 88; and compromise, 159, 168; and dispute resolution, 82; elites and, 71n1; pragmatic discourses and, 229 Barry, Brian, 120, 121 Barunga Statement, 126, 127 Bellamy, Richard, 107 Benhabib, Seyla, 15-16, 90n2, 223; Coulthard on, 139-44, 148-53, 157-58 Berlin, Isaiah, 111n6 Bhabha, Homi K., 141, 154n6 Bishop, George, 203 Black, Duncan, 198 Blake, Philip, 147 Boettcher, James, 225 Bohman, James, 11-12, 22

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Index

Bok, Sisela, 79 borders, democratic deliberation across, 105; and democratic minimum, 106, 109; and justice, 105, 110 Bradburn, Norman, 199 Brighouse, Harry, 10 Bringing Them Home, 128 Brown, Michael, 209, 210-15, 220, 221, 223-24, 226, 227, 230 Bryce, James, Viscount, 182, 183, 185; The American Commonwealth, 181 Buchanan, Allan, 98-99, 112n13 Canada: Indian Act, 143, 145, 146, 165; Indian Residential Schools Truth and Reconciliation Commission, 135n2. See also Native peoples of Canada capitalism, 147-48 Chambers, Simone, 12-13 Charter of Rights and Freedoms, 34n8, 150-51 Chicago Police Department citizens’ meetings, 189 children: Australian Aboriginal, 15, 126, 128, 130; Canadian Native, 142, 143, 145, 150. See also education; families cities, 94, 96, 102-3 Citizen Summits (AmericaSpeaks), 189 citizens’ juries, 202, 227 citizenship: and accountability, 99; deliberative, 22, 24-26; deliberative democracy and, 2; requirements of, 25; and slavery, 98; universal, 106 civil participation, 2, 25; as civic-minded vs. privatistic, 2; in elections, 206; marginalized groups and, 28; religious groups and, 25; self-determination and, 151 civil society, education and, 48-49; inclusion of marginalized groups in, 141; and multicultural understanding, 171; transnational, 110 civility, 30-33; education and, 30-33, 44; and reciprocity, 29; and reflexivity, 30-32; stable constitutional regimes and, 39 The Claims of Culture: Equality and Diversity in the Global Era (Benhabib), 140-44, 151 Clifford, James, 148 Clinton, Bill, 200, 203 “Co-Managing Natural Resources with First Nations” (Saskatchewan Indian Federated College), 164-69 Coen, Amanda, 225 Cohen, Joshua, 11, 90n2 colonialism, deliberative democracy and, 139, 149; hierarchies of, 139, 147; and

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indigenous peoples, 14-15, 151-52; and legitimacy, 150; and patriarchy, 145-46, 146-47; and power relations, 143, 145; social constructivism and, 149; transnational federalism and, 101 common good. See good, common common interests: and negotiation, 167, 168, 172; strong deliberativism and, 57, 58, 69-70, 71 common reasons, 156, 159-60, 164, 169 compromises, co-management of natural resources and, 167; consensus vs., 6; incommensurability and, 159-60, 168; pluralism and, 5-6; religious students and, 64; strong deliberativism and, 58 conceptions of the good. See good, conceptions of the consensus, common good and, 5; compromise vs., 6; conferences, 16; and constitutional negotiations, 77; deliberative democracy and, 2; overlapping, 22 Consensus Conferences, 202 constitutional debate/negotiation, 84-88; of Assemblée Constituante (1789), 7980; Charlottetown referendum, 90n13; Charlottetown round, 77-78, 84; closed vs. open, 12-13, 77; of Constitutional Convention of Philadelphia (1787), 79-80, 83, 87; Meech Lake round, 77; quality of, 78, 79-80; South African, 85-86, 88 constitutionalism: and deliberative democracy, 11-13, 99-100; liberal, 7; and multinational states, 11-12; republican, 180-81; rule of law and, 106, 109 constitution(s): Australian, 126; democratic will and, 183; European Union (EU), 90n13; minimum standards of, 11; public deliberation and, 11, 12; reasonable citizens and, 39 consultation. See public consultation Converse, Phil, 203 corruption, 177, 178, 180, 181, 191-92 cosmopolitanism, 108, 110, 111, 172n4 Coulthard, Glen, 15-16 Counterfactual Question, 177, 184-85; and corruption, 178; Deliberative Polls and, 182; as normative standard, 179, 184-85, 187; and popular will, 184, 186; and power, 180, 192; and public wishes, 179; and republican institutions, 180-82, 186 cultural identity/-ies, anti-essentialism and, 140; constructivism and, 144, 148; and domination, 140; and inequality, 140; justice and, 120, 121; mosaic multi­ culturalism and, 140-41; power relations

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Index

and, 143; purity/distinctness of, 140; social constructivism and, 15-16 Dahl, Robert, 7, 103-4, 105 Davidson, Donald, 157-58, 172n3 Day, Richard, 153 debate: defined, 214, 228; offensive vs. defensive claims in, 37-38, 44; public reasons and, 61; quality of, 79-80, 84, 85; referendums and, 77; standard of public reason and, 82. See also constitutional debate/negotiation decision making, borders and, 9; citizens and, 2, 16-18; deliberation and, 9, 54, 66, 71n1; Deliberative Polls and, 190-91; democratic minimum and, 11-12; discipline of, 190-91; justice and, 93, 118, 121, 122; multi-stage, 185-87; postdeliberative pluralism and, 134; public reason and, 121; in transnational institutions, 104; unreasonableness and, 44 deliberation, 3, 25-26; case-based oral history of, 209-10; classroom political discussion vs., 67; and collective empowerment, 182; and common interest, 57, 70; concrete forms of, 227-30; constitutions and, 11, 12; definitions of, 66, 190; experiments with, 209; free and equal condition of, 57, 70; historical injustice and, 119-21; incommensurability and, 157-58; as individual aptitude, 26; infrastructure of, 219-20; institutions and, 183-84; intercultural understanding and, 170; legitimacy condition, 57, 64-65; location of, 9; norms of, 215-16; online discussion groups and, 202; and political equality, 194-95, 197; positivity vs. negativity in, 217-19; and power, 180, 181, 182; practices in, 17; procedural vs. substantive constraints on, 4; propositional vs. performative qualities of, 218, 219; and public reason, 5, 121, 125; quality of, 189-90; religious students and, 64; and social interaction, 25; three strands of, 214-15; and value pluralism, 25-26; well-conducted, 55-56, 57, 65, 70. See also reason, private; reason, public Deliberation Day, 17, 206-7 deliberative citizenship, 22, 24-26; burdens of, 35; fostering of traits of, 35; parents and, 35; religious believers and, 35; religious schools and, 48; schooling and, 35, 45, 46 deliberative democracy, challenges facing, 5-8; constraints on, 121; and deepening

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of democracy, 93; as democracy, 1-2; institutions of, 6-7, 8, 122; outcomeoriented approaches, 225; pluralist account of democratic politics vs., 1-2; populist versions of, 71n1; propositional vs. performative in, 221-24; purpose of, 8; real world of, 6, 9; self-reproduction of, 62; theory, 209; theses of, 1-5; transnational, 93, 104; virtues for, 8-9, 226 Deliberative Opinion Polls, 16-17, 179-80, 203-6, 227; about, 196; agenda setting, 184; and collective decision making, 190-91; and corruption, 180; and Counterfactual Question, 182; and empowerment, 196; facilitation modes in, 229; generation of results from, 184; and informedness of public, 188-89; on Internet, 205-6; and joint agency, 17, 187-88; and minipublics, 189-90; normative role of, 179-80; opinion polls vs., 177, 182, 196; and policy-making process, 187-88; and political equality, 207; random selection and, 179, 180, 182, 205; and rational ignorance, 196; and wishes, 17, 179-80, 187-92 deliberatively democratic character, 8, 55-62, 226; and conceptions of the good, 7; disjunctivity of, 56, 67, 70-71; education and, 57, 65-67; formation of, 54; mutual translation and, 68; partial comprehension and, 68; religious education and, 54-55, 56-57, 62-64, 71; strong deliberativism and, 61-62; traits of, 9-10, 55-57, 68 democracy/-ies: as causal vs. rational process, 1; deepening of, 93; definition of, 93; deliberative democracy as, 1-2; and division of labour, 180, 185; domination of one another, 100; as exchange of reasons, 2; face-to-face, 182; and human rights, 92, 93, 94-95; ideal vs. non-ideal, 95; institutional design in, 100; and justice, 110, 117-19; justifications for, 92; mass, 12, 82, 83, 85; multilevel, 108-9; plebiscitary, 206; problems of, 92-93; reflexivity in, 100; and social justice, 92; transnational, 103, 105-6, 110-11; in US, 181, 183; value conflict and, 26. See also liberal democracy/-ies Democracy and Disagreement (Gutmann; Thompson), 123-24 democratic circle, 93, 95, 98, 99, 106, 110, 118 democratic deliberation. See deliberation democratic minimum: across borders, 106, 109; constitutions and, 11-12;

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Index

democratic circle and, 93; federalism and, 101-2; and justice, 94-100, 105, 109 Dene Nation, 147-48 Department of Indian and Northern Affairs of Canada (INAC), 164-69 Derrida, Jacques, 182 Dewey, John, 69, 92-93 dialogue, debate vs., 214; as mode of public discourse, 214, 228; publicity and, 79, 80; safe havens and, 84; in South African constitutional debate, 85 Diary of a Young Girl (Frank), 38 Dirlik, Arif, 150, 153 division of labour: democratic, 180, 185; in OMC, 105; republican, 180-83, 186; between Socratic and democratic dimensions of public reason, 83; stepwise, 185-87 domination: colonial, 149; communication styles and, 222-23; cultural identity and, 140; deliberative democracy and, 15-16; demoi and, 100-1, 102, 103; federalism and, 101-2; freedom from, 93; and justice, 95; of Native populations, 107; political rights against, 94; rights against, vs. rights to self-determination, 94; security and, 96; self-determination vs., 94; and slavery, 98; social constructivism and, 152-53; tyranny vs., 106. See also non-domination Downs, Anthony, 196-97, 202-3; Economic Theory of Democracy, 182 Dryzek, John, 13, 90n2 Dworkin, Ronald, 3 Economic Theory of Democracy (Downs), 182 education, accessibility and, 68-69; and autonomy, 44, 45, 59-60, 62; and civil society, 48-49; and civility, 30-33, 44; and deliberative citizenship, 35; in deliberative democracy, 6-7, 9-10; and deliberatively democratic character, 54, 57, 61-62, 65-67; goals of, 26-33; of Mexican indigenous peoples, 162; and moderation, 32-33; multicultural, 17071; norm of reciprocity and, 38; parents and, 23, 38, 44; and promotion of reasonableness, 45-52; public vs. private, 48; publicity and, 68-69; and reciprocity, 29-30; and reflexive distance, 31-32; relativity in, 31-32; state and, 48; for strong deliberativism, 62, 65; teaching of religion in, 47; and tolerance, 27-28, 38. See also schools

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elections, 85; in Australia, 206; Deliberative Polls and, 196-97; participation in, 206; in US, 195 elites, closed/secret negotiations among, 77; and constitutional negotiations, 12; deliberation by, 71n1; and democratic politics, 2; interest groups and, 1; and plebiscitary rhetoric, 89 Elster, Jon, 79-80, 87, 90n2, 189 empowerment. See power and empowerment Enlightenment, 29, 222, 223 essentialism: and exclusion, 143, 150; and identity, 139, 150, 153; and inequality, 153; and power relations, 148; and recognition, 139, 140; and social constructivism, 148 “Ethical Consistency” (Williams), 179 European Convention on Human Rights, 104 European Court of Human Rights, 104, 112n10 European Parliament (EP), 108 European Union (EU), 94, 101, 104-5, 106-7, 108-9, 110; constitution, 90n13; Court of Justice, 104 exclusion, essentialism and, 143, 150; and First Nations, 143, 144; identity politics and, 139; marginalized groups and, 142-43 facilitation, 215-20, 225, 229-30 fallibilism, 59 familiarization: and cross-cultural understanding, 14; incommensurability and, 157, 169, 170 families: beliefs and value systems, 22, 23; and deliberative citizenship, 35; and education of children, 23, 38, 44; and liberal democracies, 22, 24, 38; and norm of reciprocity, 38; and public schools, 51; and religious education, 47, 49; rights of, 38 Fay, Brian, 212, 213 federalism, 101-3 Feldman, Sandra, 532n6 First Nations. See Native peoples of Canada Fishkin, James, 8, 16-17, 90n5, 91n20, 137n15, 229; Richardson on, 177-78, 179, 180, 183, 184, 188 Fontane, Theodor, 179 Forester, John, 17, 221-22, 224, 226, 227, 228 France: Assemblée Constituante (1789), 79-80, 81; Enlightenment in, 29; and

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Index

European Constitution, 90n13; religion in, 29 Fraser, Nancy, 139 freedom(s), autonomy and, 60, 61; as capacity to begin, 93, 99; of citizens, 96; despotism and, 111n6; from domination, 93; human rights and, 108; in public deliberation, 70; of religion, 11; and slavery, 98 Frug, Gerald, 102 Fung, Archon, 189-90, 190 Gallup, George, 182, 202, 206 Galston, William, 37-38, 40, 42, 44, 52 Gayusuz v. Austria, 112n10 good, common, arguing vs. bargaining and, 80; and consensus, 5; deliberation and, 9; deliberative democracy and, 155; public reason and, 81; publicity and, 79 good, conceptions of the: comprehensive, 3, 6, 13, 39, 47; deliberation and, 3; deliberatively democratic character and, 7; hegemony and, 8; mutual translation and, 68; pluralism of, 6; public reason and, 2, 4, 5; public schools and, 10, 43, 47; reciprocity and, 4; tolerance and, 27 good, public, accountability and, 99; cities and, 103; land and, 166; religion and, 31 Goodin, Robert, 91n18 Grayling, Anthony, 48 Gutmann, Amy: on constitutional negotiation, 89; constraints on public deliberation, 121; on deliberative democracy, 22; Democracy and Disagreement, 123-24; on Philadelphia Constitutional Convention, 87; and plebiscitary rhetoric, 81; on publicity, 90n2; on publicity vs. secrecy, 80; and reciprocity, 4, 22, 29, 37, 39, 44; on results of deliberation, 4; on Socratic and democratic convergence, 83; on South African Truth and Reconciliation Commission, 123-24 Habermas, Jürgen: and autonomy, 5; and colonization of life-world, 4; and communication, 4-5; and Enlightenment universalism, 223; on EU, 107; on informal public sphere, 185; and interdependency of rights and democracy, 136n6; and juridification, 106; moral relativism, 222; on moral vs. ethical vs. pragmatic discourses, 229; on politics and power, 180; and post-deliberative pluralism, 134; on poststructuralism, 222; on propositional in deliberative

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democratic theory, 221-22; and public vs. non-public reasons, 14; and public reason as arguing, 80; and relation between quality of deliberation and inclusiveness in public sphere, 90n6; Theory of Communicative Action, 221 Hall, Stuart, 153 Hand, Learned, 69 Hardt, Michael, 144 Hawke, Robert, 136n10 Höffe, Otfried, 108 Holmes, Stephen, 11 Howard, John, 127, 128-29, 130-31 human rights. See rights Hume, David, 90n10 identity/-ies, constructivism and, 139, 153; cultural (see cultural identity/-ies); essentialism and, 139, 150, 153; and exclusion, 139; familial values/beliefs and, 24; and marginalization, 139; moderation in expression of, 32-33; politics of, 138-39; religious education and, 28; respect for others,’ 28; schools and, 23, 24; social constructivism and, 152-53 image maintenance, 82, 83 imperialism. See colonialism impossibility theorem, 183-84 incommensurability: categorical, 156, 158, 169; and deliberative democracy, 169-71; and democratic deliberation, 157-58; of domains of discourse, 156, 158; epistemic, 156, 158, 169; and familiarization, 157, 169, 170; and mutual understanding, 156-57; normative, 156, 158, 163-64, 169; partial, 185-59; of worldviews, 14, 156-60, 169-71 Indian Residential Schools Truth and Reconciliation Commission, 135n2 indigenous peoples, collective rights claims of, 119; colonial institutions and, 14-15, 151-52; constitutions and, 100; deliberative democracy and, 13-16, 15-16; as distinct peoples, 161, 162, 163; famine and, 107; in Mexico, 160-64; political rights of, 98, 100; self-government by, 119, 120; territories of, 119 inequality, anti-essentialism and, 142; Canadian Native peoples and, 146-47; cultural identity and, 140; essentialism and, 152-53; in state-indigenous peoples’ relationship in Canada, 145 injustice(s), borders and, 105, 110; and democratic circle, 93, 99; historical, 115, 119-25; liability for, 116-17. See also justice

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Index

institutions: agenda setting, 183, 185; for deliberation and political equality, 19495; and deliberative democracy, 6-7, 8, 122; and deliberatively democratic character traits, 8-9; historical injustices and, 121-25; international financial, 94, 100; for management of natural resources, 165; overlapping, 109, 111; popular will and, 183-84, 185; problems of, in democracies, 100; republican, 180, 182, 195, 197; transnational, 108-9, 110; and truth and reconciliation commissions, 135 interests: as pre-politically formed, 1-2. See also common interests Internet, Deliberative Polls on, 205-6; discussion groups on, 201-2; selfselected listener opinion polls (SLOPs) on, 200 irony, 63, 69 Ivison, Duncan, 15, 150 Jefferson, Thomas, 80 Johnson, Lyndon B., 186 Jordan, Barbara, 54, 70 juridification, 106-7 justice, absence of tyranny and, 98; for Australian Aboriginal peoples, 127; borders and, 109; democracy and, 92, 110, 117-19; democratic minimum and, 94-100, 105, 109; domination and, 95; federalism and, 101; ideal vs. non-ideal, 95; imposition of, 118; indeterminacy of, 118-19; as matter of degree, 93, 96; non-domination and, 98-99; as regularity, 107; reparations, 117; restorative, 117; rhetoric and, 223; rule of law and, 107; security and, 96; transitional, 115, 116, 124. See also injustice(s) Kahane, David, 17 Kant, Immanuel, 90n3, 118, 222; Metaphysics of Morals, 107-8 Keating, Paul, 127-28 Kettering Foundation, 201 Keyes, Alan, 200 King, Martin Luther, 67 knowledge: and rationality, 24; universal vs. folk, 23 Kompridis, Nikolas, 140 land, Australian Aboriginal peoples and, 125, 126-27, 128; Canadian Native peoples and, 166, 169; and reconciliation process, 128 law, burdens of judgment and, 41; fundamentalist religious groups and, 34n7, 41;

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public vs. private reason and, 41; and public vs. private spheres, 34n8; rule of, 106, 107, 108-9, 110 Lawrence, Bonita, 146-47 legislation, deliberative secrecy and, 80; judicial review of, 3; norm of reciprocity and, 40 legitimacy: and Australian reconciliation process, 125; bargaining and, 88; colonialism and, 150; deliberative democracy and, 156; deliberative democratic theory and, 13; democratic, 117; democratic minimum and, 98; historical injustice and, 122; and indigenous peoples, 13; public deliberation and, 57, 64-65; publicity and, 78; Rawls’s principle of, 3839, 42-44, 44; and recognition, 140; of reconciliation process, 132-33; social constructivism and, 16; South African constitutional debate and, 85-86 liberal democracy/-ies, deliberative democracy as, 1; parents and, 22, 24, 38; public schools and, 27-33; religious groups and, 34n6. See also democracy/-ies liberal generosity, 213, 220, 226 Liberalism against Populism (Riker), 183-84 Locke, John, 27, 68 Mabo, 127-28 Macedo, Stephen, 61 Mackenzie Valley Pipeline Inquiry, 147, 154n5 Madison, James, 80, 194 Mandela, Nelson, 85-86 manipulation, 82 marginalized groups: communication styles, 222-23, 224; identity politics and, 139; inclusion of, 141-42 McCarthy, Thomas, 116 meaning holism, 159 mediation, 209-15, 220, 223-24, 225, 229-30 Metaphysics of Morals (Kant), 107-8 Mexico: government, 160, 161; indigenous peoples in, 160-64 Michelman, Frank, 69, 192n5 Milirrpum and Others v. Nabalco and the Commonwealth of Australia, 126-27 Mill, John Stuart, 111n6, 226 Milot, Micheline, 10 Mirabeau, Honoré-Gabriel Riqueti, comte de, 86 moderation, 30, 32-33 modernity, education and, 22, 23-24; indigenous peoples and, 151; and

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Index

propositional vs. performative, 223; reflexivity and, 34n9 Monture-Angus, Patricia, 145-47 Mozert v. Hawkins, 38, 51-52 Mulroney, Brian, 77 multiculturalism: and education, 170-71; as isolation, 212; mosaic, 140-41 multinational states, 11-12. See also transnationalism Murray, Les, 137n13 National Issues Forums (NIFs), 201 Native peoples of Canada: and animals, 166; assimilation of, 150; children, 142, 143, 145, 150; co-management of natural resources, 164-69; conceptualization by settler nations as inferior, 152; European settlers and, 152; and exclusion, 143; feminism, 146-47; inequality and, 146-47; and land, 166, 169; mutual understanding with, 167-68; negotiations with, 166-67; oral traditions, 164; recognition of, 138, 150-52; self-determination of, 142-46, 150-52; state and, 144; talking circles, 215-20, 225, 228; traditions, 146, 147; women, 142-43, 144, 145, 146, 150 Native Women’s Association of Canada (NWAC), 145-46 negotiation(s), 228; bargaining and, 80, 87, 88; with Canadian Native peoples, 166-67; common interests and, 167, 168, 172; elites and, 12, 77; power relations and, 168; pragmatic discourses and, 229; respect and, 212; secret, 86-88. See also constitutional debate/negotiation Negri, Antonio, 144 non-domination: and democratic minimum, 93; and justice, 98-99; rule of law and, 107; in social and political relations, 117; in transnational democracy, 110 Open Method of Co-Ordination (OMC), 104-5 opinion polls, 188-89, 202-3; Deliberative Polls and, 177, 182, 196; and political equality, 194; random-sampling, 180, 182, 200; safe havens and, 12. See also Deliberative Opinion Polls; public opinion Oregon Health Decisions, 189 Pagden, Anthony, 111n8, 112n9 Pagé, Michel, 32 pandering, 82 parents. See families

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Participatory Budget mechanisms (Porto Alegre, Brazil), 189 Paul, Ron, 200 Peale, Norman Vincent, 218 Pearson, Noel, 129, 130 Pettit, Philip, 98-99, 107, 117, 190, 192n5 plebiscitary democracy, 206 plebiscitary reason, 12-13, 83-84, 86, 87, 90n3 plebiscitary rhetoric, 12, 81, 82-83, 84, 86, 87, 89 plebiscites, 85 pluralism: and compromises, 5-6; of conceptions of good, 6; cultural, 13-14, 227-28; and cultural groups, 142; and democratic politics, 1-2; post-deliberative, 125, 134; public reason and, 78; reasonable, 3, 38-39; and social harmony, 116; of worldviews, 6. See also value pluralism Pogge, Thomas, 111n7 policy making, Deliberative Polls and, 187-88; multi-stage approach, 185-87 political rights. See rights popular will. See will, popular Porto Alegre (Brazil): Participatory Budget mechanisms, 189 poverty. See social and economic circumstances power and empowerment: in collective decision making, 190-91; and corruption, 177, 192; Counterfactual Question and, 180, 186, 192; Deliberative Polls and, 196; and deliberative quality, 189-90; democratic deliberation and, 180, 181, 182-83; dividing and checking, 180, 181; joint agency and, 187-88; “minipublics” and, 189; of people, 194; popular will and, 16-17, 182-83; republican institutions and, 186; truth and, 185; and wishes, 195 power relations, 117; asymmetrical, 121, 139-40; colonial, 143, 145; and communication styles, 224; and conceptions of the good, 8; cultural differences and, 6; and cultural identity, 143; deconstruction of, 144; and deliberative democracy, 133-34; essentialist notions of tradition/ culture and, 148; and negotiations, 168; and reconciliation, 15; social constructivism and, 16; Zapatista-Mexican government, 163 private reason. See reason, private public consultation: discussion groups, 201; face-to-face vs. on Internet, 201-2; forms of, 16, 227; innovative forms of,

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209; mass, 206; non-random sampling for, 202; varieties of, 198-207 Public Conversations Project, 214 public debate. See debate public deliberation. See deliberation public good. See good, public public opinion, 182; consultation methods, 198-20; informedness of, 188-89, 194; and multi-stage decision making, 186; and radio call-in shows, 199-200; in US democracy, 181, 183. See also opinion polls public vs. private sphere, burdens of judgment and, 41; constitutional debate and, 83-84; law and, 34n8, 41; and moderation, 32; and plebiscitary rhetoric, 86; quality of debate and, 84; and reasonable politics, 85; safe havens and, 84-86; values/beliefs in, 23, 30 public reason. See reason, public public schools, confessional teaching vs. complete abstention in, 22; and deliberative democracy, 10, 21-22; educational requirements of, 22; and identity, 23, 24; liberal democracy and, 27-33; and modernity, 23-24; religious parents and, 51; teaching of religion in, 27-28; and value conflict, 21; value pluralism and, 22-24, 26 public sphere, inclusion of marginalized groups in, 141; informal, 185; as multiple, 88; plebiscitary rhetoric in, 89; transnational, 110 publicity, 55, 77; arguments for, 78-80; and common good arguments, 79; and constitutional negotiation, 12; deliberative democracy and, 78, 121; and democratic education, 68-69; democratic mechanism and, 79; and public reason, 78, 79; and quality of constitutional debate, 78, 80; Socratic mechanism and, 79 rational ignorance, 17, 196-97 Rawls, John: on burdens of judgment, 40; and comprehensive conceptions of the good, 13; and contractualism, 3; on deliberative democracy, 22; on education and liberalism, 43-44; on human rights, 94; on ideal vs. non-ideal theory, 95; and interdependency of rights and democracy, 136n6; on irreconcilability, 73n14; on justice as fairness, 43-44; and justice as regularity, 107; and non-public reason, 90n3; and norm of reciprocity,

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41; principle of legitimacy, 38-39, 42-44, 52; on public reason, 40, 59; on reasonable disagreement, 118; on reasonableness, 40, 52 reason, private, democratic dimension of public reason and, 81-84; and problem of particularity, 87; public reason vs., 79, 80-83, 87; Socratic dimension of public reason and, 81-84, 87 reason, public, 40; conceptions of the good and, 2, 4; conservatism and, 22; democratic deliberation and, 5, 121, 125; democratic mechanism and, 78, 81-84; mass democracy and, 82; moral views and, 55; private reason vs., 79, 80-83, 87; publicity and, 78, 79; and reciprocity, 4; and reconciliation process, 120-21; and religious schools, 55; Socratic mechanism and, 78, 81-84; strong deliberativism and, 55 reasonableness: and constitutions, 39; education policy and, 45-52; and justice as fairness, 44; norm of reciprocity and, 37-38; promotion of, 42-44; propositional vs. performative argumentation and, 225; Rawls on, 40; regulation of schooling and, 43-44; religious schools and, 47; schools and, 46-47. See also unreasonableness reasons, non-public, 60-61, 67-68 reasons, public, accessibility vs. inaccessibility of, 55, 65, 68-69; and changes in views, 58, 59; cultural pluralism and, 13-14; and political outcomes, 58, 60; and public debate, 61; and rejection/ modification of views, 63-64; religious schools and, 63-64; responsiveness toward, 58, 59; strong deliberativism and, 58, 59 reciprocal validation, 170 reciprocity, 22, 29-30; civic-mindedness and, 30; civility and, 29; and deliberative democracy, 2, 121; democratic citizenship and, 37; education and, 10; egalitarian, 142; moderation and, 32; norm of, 4, 37-38, 40, 41, 42, 44, 224-25; propositional vs. performative argumentation and, 224-25; public reason and, 4; religion and, 29-30; religious believers and, 37; tolerance and, 38; and TRC, 124; and value pluralism, 8 recognition, 212; anti-essentialism and, 149; argumentation vs., 225; of Canadian Native peoples, 138, 150-52; as displacement, 139; epistemic judgment and,

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Index

226; essentialism and, 139, 140; importance of, 225; legitimacy and, 140; of marginalized groups, 224; mutual, 224, 225; normative conditions for, 141-42; propositional vs. performative argumentation and, 224-25; social constructivism and, 16, 139-40, 150; state and, 153; and universal rights of group members, 143 reconciliation: and apologies, 128, 130, 131; in Australia, 15, 116, 124-33, 135; deliberative democracy and, 132; democratic, 116; and forgiveness, 116; legitimacy of process, 132-33; public reason and, 120-21 referendums, 77, 85, 126, 206 reflexivity, 8, 30-32; of deliberative democracy, 93, 100; in democracies, 100; education and, 10 relativity, 31-32 religion: in France, 29; freedom of, 11; and reciprocity, 29-30; teaching of, 2728, 47; and tolerance, 28; and Western culture, 27 religious believers, characteristics of, 35; and deliberative citizenship, 35; norm of reciprocity and, 42; and reciprocity, 37; in US, 41-42 religious fundamentalism, civility and, 30; and home schooling, 36; and law, 34n7, 37n4, 41; moderation and, 33; and Mozert v. Hawkins, 38-39; as political force, 42; and public reason, 33; and reasonableness vs. unreasonableness, 41-42, 50-51; reciprocity and, 29, 41-42; reflexivity and, 33; in UK, 42; in US, 42, 50-51 religious schools, civic formation in, 33n3; and deliberative citizenship, 46, 48; and deliberatively democratic character, 10, 54-55, 56-57, 62-64, 71; funding of, 36-37, 46, 47, 48-49, 50, 51; and mutual translation, 64-69; non-religious schools compared to, 45; parents and, 47, 49; privatization of, 36; prohibition of, 36, 51; and public reason, 55; and public reasons, 63-64; and reasonableness, 47; regulation of, 37, 47-48, 51; state and, 36, 47-48, 49-51; teaching on morality, 63, 71; and translation of views, 68; in UK, 49-50; and unreasonableness, 49; in US, 36; vouchers for, 53n6 republicanism: and corruption, 178; and Counterfactual Question, 178; and division of labour, 180-83; and human rights, 98; institutions, 180, 182; institu-

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tions and power, 178; and shared liberty, 109; and transnational federalism, 101; and universal political rights, 94 resistance: to recognition, 138-39; tradition and, 146-48 respect: and deference, 226; and disagreement, 58, 212; equal, 225; for identities of others, 28; and multiculturalism, 213; mutual, 169, 172, 191; and mutual recognition, 225 Richardson, Henry S., 8, 16-17, 195-98 rights, accountability and, 99; of Australian Aboriginal peoples, 124, 125, 130; bargaining and, 88; and borders, 105; of city residents, 103; collective, of indigenous peoples, 119; democracy and, 92, 93, 94-95; against domination, 94; in EU, 101, 104; and freedoms, 108; of immigrants, 104; to nationality, 94; republican account of, 98; right to have, 108, 109, 110; and self-determination, 94; universal, 106, 108 Riker, William, 197-98; Liberalism against Populism, 183-84 Roemer, John E., 136n5 Rorty, Richard, 69 Rousseau, Jean Jacques, 118 Rudd, Kevin, 116, 131 Sabel, Charles, 100, 104 safe havens, 12, 84-86, 89 San Andres Accords, 160-62, 163 Saskatchewan Indian Federated College, 165-69 schools: and deliberative citizenship, 46; effectiveness of, 45-46; funding of, 45; ideal vs. actual, 45; private, 10, 36; and reasonableness, 46-47; regulation of, 43. See also public schools; religious schools secrecy, deliberative, 79-80, 86-88, 89 self-determination: of Australian Aboriginal peoples, 127, 128, 130; of Canadian Native peoples, 138, 142-46, 150-52; capitalism and, 147-48; of Mexican indigenous peoples, 161-63, 163; political rights and, 94; and recognition, 138; and reconciliation process, 128; as right to participate in wider community, 151; self-governance vs., 151; social constructivism and, 16, 142-46, 150; and universal rights of group members, 143; values and, 148 self-governance/government: by Australian Aboriginal peoples, 125; capacity to make claims as, 94; cities and, 102-3;

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deliberatively democratic character and, 55; by indigenous peoples, 119, 120; by Mexican indigenous peoples, 161, 162, 163 self-selected listener opinion polls (SLOPs), 199-200, 202 Sen, Amartya, 107, 108 Seneca, 109 sequentialism, 13, 83 Sherman, Larry, 209, 215-20, 221, 225, 227, 228, 229 Shklar, Judith, 116 sincerity, 178, 181, 191-92 skepticism, 59, 63, 69 slavery, 90n9, 95, 98, 115 social constructivism, 139; and cultures, 141; and deliberative democracy, 140-42, 144, 149; and domination, 152-53; essentialism and, 148; and identities, 15-16, 148, 152-53; and imperialism, 149; and power relations, 16; and recognition, 16, 139-40, 150; and selfdetermination, 16, 142-46, 150 social and economic circumstances: of Australian Aboriginal peoples, 125, 126, 129, 130; of Canadian Native peoples, 144-45; of Mexican indigenous peoples, 162 social identity. See identity/-ies social justice. See justice social transformation, normativity and, 144, 148-49; tradition as strategy for, 146-48 Socratic dimension, 78, 79, 81-84, 90n4 South Africa: constitutional debate, 85-86, 88; Truth and Reconciliation Commission (TRC), 123-24 Spinner, Jeff, 32 state: and Canadian Native peoples, 144; and education, 48; legitimacy of, 38-39, 44; and recognition, 153; and religious schools, 36, 47-48, 49-51; unreasonableness and, 42-43, 44 strong deliberativism, 55, 57-62, 65, 67, 69-70 Sunstein, Cass, 11 Supreme Court of Canada, 152 Susskind, Lawrence, 211 terra nullius thesis, 152 Theory of Communicative Action (Habermas), 221 Thompson, Dennis: on constitutional negotiation, 89; constraints on public deliberation, 121; on deliberative democracy, 22; Democracy and Disagreement,

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123-24; on Philadelphia Constitutional Convention, 87; and plebiscitary rhetoric, 81; on publicity, 90n2; on publicity vs. secrecy, 80; and reciprocity, 4, 22, 29, 37, 39, 44; on results of deliberation, 4; on Socratic and democratic convergence, 83; on South African Truth and Reconciliation Commission, 123-24 Tocqueville, Alexis de, 227 tolerance, 27-28; and deference, 226; education and, 38; liberal generosity and, 220; in mediation, 213; norm of reciprocity and, 38; principles of law and, 28; religion and, 28; weak vs. strong senses of, 27 Town Halls, 16, 227 tracking: and democratic minimum, 98-99 translation: and cross-cultural understanding, 14; familiarization and, 157, 158, 169; mutual, 64-69; of non-public into public reasons, 67-68 transnationalism: and civil society, 110; and democracy, 103, 105-6, 110-11; and federalism, 101; of framework for non-hierarchical institutional design, 108-9; and polities, 94; of public spheres, 110 treaties: in Australia, 125, 127, 129; and Canadian Native peoples, 165 truth, 178, 191-92, 195 truth and reconciliation commissions, 116, 135 Tully, James, 12, 100, 152, 154 Turner, Terrance, 140 Two Hundred Years Later, 127 tyranny, destitution and, 98; and justice, 95, 98; legal domination vs., 106; of the majority, 5, 25 understanding, mutual, 14, 73n14, 156, 158, 167-68, 171, 172 United Kingdom, fundamentalist Christianity in, 42; Muslims in, 48-50; religious schools in, 49-50; school principals in, 52n4 United States, cities in, 94, 96, 102-3; Clean Air Act, 185-86; democracy in, 181, 183; education in, 24, 35-36; elections in, 195; fundamentalist Christians in, 50-51; New Deal, 104; norm of reciprocity in, 37; religious believers in, 41-42; religious education in, 35-36; segregation in, 95; slavery in, 95, 115 Universal Declaration of Human Rights, 92, 108 universalism, 223

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Index

unreasonableness: and burdens of judgment, 41; fundamentalist Christianity and, 42, 50-51; and legitimacy of state, 42-43, 44; norm of reciprocity and, 38; religious schools and, 49. See also reasonableness Valadez, Jorge M., 14-15 value pluralism, 8, 21; deliberation and, 25-26; and public schools, 22-24, 26; teaching of religion and, 28; tolerance and, 28 values/beliefs: conflicting, 8, 21, 23, 26, 179; examination of own, 79; families and, 24; and mediation, 211; and neutrality, 211, 224; of parents, 22, 23; polytheism of, 21; in private vs. public spheres, 23, 30; reflexive distance from, 31-32; and self-determination, 148 Vietnam War, 186-87 viewpoints: attitudes toward, 58, 59; autonomy and, 60, 61; critical reflection on, 58, 59-60, 68; non-public reasons and, 61; partial comprehension of, 68; public reasons and, 58, 59, 60; public vs. religious reasons for, 64; rejection/ modification of, 58, 60, 63-64; shared, 61. See also worldviews

257

Weiler, Joseph, 112n10 Weinstock, Daniel, 33n1 Weithman, Paul, 10, 30 Whitlam, Gough, 127 Wik People v. Queensland, 128 will, popular, 182-85; Counterfactual Question and, 184, 186; Deliberative Polls and, 16-17, 177; empowerment and, 16-17; and institutions, 184; and interest groups, 1-2; republican institutions and, 195-96 Williams, Bernard, 178, 181, 191; “Ethical Consistency,” 179 Williams, Melissa, 222-23 wishes, Deliberative Polls and, 179-80, 187-92; popular will and, 182; power and, 195 women: communication style, 224; First Nations, 142-43, 144, 145, 146, 150 worldviews, 22, 24; cross-cultural understanding of, 14, 159; incommensurability of, 14, 156-60, 169-71; pluralism of, 6; reciprocal validation of, 170 Yirrkala Petition, 126 Young, Iris, 222-23, 224 Zapatista Army for National Liberation (EZLN), 160-61, 163

Weber, Max, 21, 23, 31

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ENVIRONMENTAL BENEFITS STATEMENT UBC Press saved the following resources by printing the pages of this book on chlorine free paper made with 100% post-consumer waste.

TREES

WATER

SOLID WASTE

GREENHOUSE GASES

6

2,938

178

610

FULLY GROWN

GALLONS

POUNDS

POUNDS

Calculations based on research by Environmental Defense and the Paper Task Force. Manufactured at Friesens Corporation

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