Democratic Experimentalism [1 ed.] 9789401209267, 9789042036604

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Democratic Experimentalism

Contemporary Pragmatism Volume 9

Number 2

December 2012

Editors

Mitchell Aboulafia, Manhattan College, USA John R. Shook, University at Buffalo, USA

Assistant Editor

Russ Pryba, Niagara University, USA

Editorial Board Susana de Castro Amaral, Universidade Federal do Rio de Janeiro, Brazil Randall Auxier, Southern Illinois University at Carbondale, USA Richard Bernstein, New School University, USA James Bohman, Saint Louis University, USA Randall Dipert, University at Buffalo, USA Pascal Engel, Université Paris IV–Sorbonne, France Jose Miguel Esteban, Universidad Autonoma del Estado de Morelos, Mexico Nancy Frankenberry, Dartmouth College, USA Nancy Fraser, New School University, USA Jim Garrison, Virginia Tech University, USA Paulo Ghiraldelli, Jr., Centro de Estudos em Filosofia Americana, Brazil Eddie Glaude, Princeton University, USA Russell Goodman, University of New Mexico, USA Judith Green, Fordham University, USA Susan Haack, University of Miami, USA Jürgen Habermas, Johann Wolfgang Goethe University of Frankfurt, Germany Leoni Henning, Universidade Estadual de Londrina, Brazil Hans Joas, University of Freiburg, Germany Robert Kane, University of Texas, USA Paul Kurtz, Center for Inquiry, USA John Lachs, Vanderbilt University, USA Alvaro Marquez-Fernandez, Universidad del Zulia, Venezuela Joseph Margolis, Temple University, USA James Marshall, University of Auckland, New Zealand Glenn McGee, Albany Medical Center, New York, USA Floyd Merrell, Purdue University, USA Cheryl Misak, University of Toronto, Canada Lucius Outlaw, Jr., Vanderbilt University, USA Michael Peters, University of Auckland, Austr.; University of Glasgow, Scotland Huw Price, University of Sydney, Australia Hilary Putnam, Harvard University, USA Bjørn Ramberg, University of Oslo, Norway Mike Sandbothe, Aalborg University, Denmark Dmitri Shalin, University of Nevada, Las Vegas, USA Richard Shusterman, Florida Atlantic University, USA Jeffrey Stout, Princeton University, USA Claudine Tiercelin, L’Université de Paris-XII, France Celal Türer, Ankara University, Turkey Bas van Fraassen, Princeton University, USA Marcus Vinícius da Cunha, Universidade de São Paulo, Ribeirão Preto, Brazil Cornel West, Princeton University, USA

Contemporary Pragmatism is affiliated with the International Pragmatism Society. See information for subscribers and contributors on the end pages of this issue.

Democratic Experimentalism

Edited by

Brian E. Butler

AMSTERDAM - NEW YORK, NY 2012

Cover photo: www.dreamstime.com The paper on which this book is printed meets the requirements of “ISO 9706:1994, Information and documentation - Paper for documents Requirements for permanence”. ISSN: 1572-3429 ISBN: 978-90-420-3660-4 E-Book ISBN: 978-94-012-0926-7 ©Editions Rodopi B.V., Amsterdam - New York, NY 2012 Printed in The Netherlands

Contemporary Pragmatism Volume 9 Number 2

December 2012

Contents Democratic Experimentalism Brian E. Butler Guest Editor’s Introduction

1

William H. Simon The Institutional Configuration of Deweyan Democracy

5

Charles Sabel Dewey, Democracy, and Democratic Experimentalism

35

Gregory Fernando Pappas What would John Dewey say about Deliberative Democracy and Democratic Experimentalism?

57

Barry Allen Experiments in Democracy

75

Shane J. Ralston Dewey and Hayek on Democratic Experimentalism

93

Michael A. Wilkinson Dewey’s ‘Democracy without Politics’: On the Failures of Liberalism and the Frustrations of Experimentalism

117

Amy J. Cohen Producing Publics: Dewey, Democratic Experimentalism, and the Idea of Communication

143

Chris Ansell What is a “Democratic Experiment”?

159

Justin Desautels-Stein Experimental Pragmatism in the Third Globalization

181

Jamison E. Colburn Reasons as Experiments: Judgment and Justification in the “Hard Look”

205

Brian E. Butler Law as a Democratic Means: The Pragmatic Jurisprudence of Democratic Experimentalism

241

Mark Tushnet Reflections on Democratic Experimentalism in the Progressive Tradition

255

Michael C. Dorf Could the Occupy Movement Become the Realization of Democratic Experimentalism’s Aspiration for Pragmatic Politics?

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James Bohman Democratic Experimentalism: From Self-Legislation to Self-Determination

273

Lenart Škof On Democratic Experimentalism: Toward a Culture of Love and Non-Violence

287

Keya Maitra Ambedkar and the Constitution of India: A Deweyan Experiment

301

Contemporary Pragmatism Vol. 9, No. 2 (December 2012), 1–4

Editions Rodopi ©2012

Guest Editor’s Introduction Brian E. Butler

This volume focuses on democratic experimentalism, gathering a collection of new essays focusing upon its major outlines, as well as specific aspects of this theoretical approach. Together these essays offer conceptions of democracy and democratic governance that highlight experimentalist aspects of pragmatic thought, particularly Deweyan pragmatism, and its relationship to instantiation in concrete social and political institutions.

This special issue of Contemporary Pragmatism centers on “democratic experimentalism.” Not surprisingly, this strain of pragmatist thought emphasizes the centrality of experimentalism to legal and democratic theory. Surprisingly, even within pragmatist literature potentially experimentalist aspects of democracy are often ignored. In contemporary pragmatic thought this might be explained by an implicit acceptance of Rortian suspicion of the “scientism” shown in analytical philosophy. It might also be a result of Rawlsian preference for “ideal” theory. Either way it is a very significant omission. More narrowly, within the realm of legal pragmatism the importance of instrumental factors, experimentalism and systemic investigation are often discounted in favor of an emphasis upon the antifoundational, contextual and perspectival aspects of pragmatism. This becomes especially problematic in the realm of democracy and law where neither Rorty’s emphasis upon redescription and ironic distance, nor Rawls’s preference for ideal theory, ensures a careful and systemic investigation of the empirical impact of such descriptions or theories. Just because a legal practitioner, say a judge, feels subjectively that he or she is doing “what works,” or even that a whole profession has a story that loosely justifies its actions from its own internal perspective, does not mean that the practice is really most effective even in its professed aims. As this collection shows, there is another strain of pragmatist thought that offers a much more thorough picture of what a pragmatic stance towards law and democracy would entail. The articles in this issue all respond to the challenge that this more rigorous use of pragmatic insights, and a central emphasis upon experimentalism, requires of social, political and legal thought in relationship to democratic institutions. What follows is a very brief outline of the articles in the current issue.

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The first two articles serve as a good foundation for understanding the aims and concrete aspects of democratic experimentalism. In The Institutional Configuration of Deweyan Democracy, William H. Simon argues that contemporary business institutions have developed practices that if adopted in the political realm could empower local democratic decision making while coordinating multiple and often distant activities, all the while allowing for a diversity of interests. He suggests that using the same tools in a political setting could bring about a strong and multi-leveled democratic governance. Charles Sabel’s Dewey, Democracy and Democratic Experimentalism offers an outline of a distinctive type of “federated” organization that combines local problem solving with overall knowledge pooling. Such an organization would be designed to encourage accountable and informed democratic decision making. Sabel completes his analysis by offering significant examples of regulation in the EU and the US that have experimentalist features. Between the first two articles, a concrete idea of democratic experimentalism emerges. The next articles further develop some specific aspects of democratic experimentalism, and they also outline some potentially troublesome issues. In What Would John Dewey Say about Deliberative Democracy and Democratic Experimentalism? Gregory Fernando Pappas emphasizes that Deweyan democratic deliberation is actually constitutive of the individual self. In relation to democratic experimentalism he worries if the capacities for such deliberation would be ensured. In Experiments in Democracy, Barry Allen argues that Dorf and Sabel are attached to a conception of experiment that is dangerously limited. Bruno Latour’s work is offered as an alternate picture of experiment that is “intensive” wherein a good experiment changes everything it interacts with. In Dewey and Hayek on Democratic Experimentalism, Shane J. Ralston claims that Dorf and Sabel’s work, while properly acknowledging its Deweyan roots, does not take important insights from Hayek’s work and therefore suffers avoidable limitations. Further, he emphasizes the necessity to face problems of strategic action if democratic experimentalism is to be successful. Michael A. Wilkinson, in Dewey’s ‘Democracy without Politics’: On the Failures of Liberalism and the Frustrations of Experimentalism, offers an argument to the effect that because Dewey ignores the politics of democratic experimentalism he cannot properly develop a conception of what type of collective politics is necessary in order to ensure effective publics. These issues constitute significant challenges for democratic experimentalism. The two articles following move to constructive analysis, clarifying essential aspects of the project. Amy J. Cohen, in Deweyan Deliberation, argues that Dewey’s theory of communication functions both as a means of producing publics and an activity that makes those publics meaningful. Cohen contrasts this concept of communication with that common in alternative dispute resolution, wherein a model is accepted that emphasizes already given desires and understandings. Chris Ansell, in What is a “Democratic Experiment”?, contrasts a conception of experiment centered on verification with a more

Guest Editor’s Introduction

3

general Dewey-inspired conception of experiment involving cooperation in inquiry. He concludes that design science offers a possible model of social inquiry that opens the possibility for a democracy that has a broader creative and flexible conception of experiment. The next four articles focus more specifically on the legal realm. Experimental Pragmatism in the Third Globalization offers a description of democratic experimentalism that situates it in the narrative of “three globalizations of law” offered by Duncan Kennedy. Justin Desautels-Stein places Sabel and Simon’s work firmly in the realm of Kennedy’s third category as committed to a “pervasive if disenchanted liberalism.” In Reasons as Experiments: Judgment and Justification in the “Hard Look,” Jamison E. Colburn claims that the contemporary judicial review of agency rulemaking, exemplified in the preferred legal terminology of the “hard look” standard, underestimates the complexity of the situation agencies face. Colburn offers a new conception of reason in the context of agency rulemaking, wherein the court ensures the agency in question is learning by doing. In my own essay, Law as a Democratic Means: The Pragmatic Jurisprudence of Democratic Experimentalism, I outline a conception of law, inspired by democratic experimentalism, that is a democratic means to the greater end of democratic society. The purpose is to offer the possibility of a democratic society composed of democratic institutions “all the way down” as Dewey’s conception of democracy would require. In Reflections on Democratic Experimentalism in the Progressive Tradition, Mark Tushnet argues that democratic experimentalism is best thought of as a genealogical development of pragmatism and the Progressive vision in that it is offered as a solution to new issues facing administrative law such as globalization, multiculturalism and developments in technology. For him, an important question is whether democratic experimentalism can be connected with an animating political movement. Future prospects and possibilities are the central topic of the essays following. Michael C. Dorf in Could the Occupy Movement Become the Realization of Democratic Experimentalism’s Aspiration for Pragmatic Politics? suggests that rather than aiming for policies within the current understanding of democracy, Occupy is pushing for a more democratic form of democracy. He then expresses hope that Occupy could create positive change in American democracy along the lines offered in democratic experimentalism. In James Bohman’s Democratic Experimentalism: From Self-Legislation to Self Determination, a new idea of self-government is advocated in response to contempory international challenges. He constructs a picture of a transnational context wherein a “democratic minimum” is ensured in service of selfdetermination that would protect individuals from domination by the multiple and overlapping institutions in a globalized world. Lenart Ŝkof’s On Democratic Experimentalism: Toward Culture of Love and Non-Violence brings the work of Richard Rorty, Luce Irigaray and John Dewey together in an attempt to show a

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common project in the creation of an experimentalist and non-violent characterization of politics through a conception of “ethical pragmatism.” The last paper finds historical precedent for democratic experimentalism in the Indian Constitution. Keya Maitra, in Ambedkar and the Constitution of India: A Deweyan Experiment, investigates the Indian constitution in light of B. R. Ambedkar, Chairman of the Drafting Committee of the Indian Constitution and student of John Dewey. She offers evidence that Ambedkar’s ideas on democracy were Deweyan in their emphasis upon experimentation and the need for an inclusive public. As can be seen from the above overview, a significant number of important issues are covered in this collection. Democratic experimentalism offers an important picture of democracy, and an attractive and challenging alternative to the more static and dogmatic, not to mention strangely a-historical conceptions of democracy and law dominant in contemporary politics and political theory. It is of special note that these essays come from scholars in law, political science and philosophy. This represents the interdisciplinary interaction that one would expect from engaged pragmatic investigation of any issue. Many people have helped on this project. I would like to give special thanks to John Shook for supporting the idea of this project and giving me a venue to publish the results, and William Simon and Amy Cohen for generously joining in the process of putting together not only this issue of Contemporary Pragmatism but also suggesting that it should be accompanied by a workshop on the topic at the University of North Carolina, Asheville. It is a pleasure to correspond with impressive scholars that also exemplify such positive enthusiasm and graciousness. I thank all the participants for their thoughtful work and willingness to add to the conversation. I also gratefully acknowledge the generous sponsorship and support of the Center for Interdisciplinary Law and Policy Studies, The Ohio State University Michael E. Moritz College of Law, and the Thomas A. Howerton Distinguished Professor in the Humanities Endowment at UNC Asheville. Finally, I would like to thank Christopher Liedtke for extremely valuable help in research, proofreading and editing.

Brian E. Butler Department of Philosophy University of North Carolina, Asheville One University Heights Asheville, North Carolina 28804-8520 United States

Contemporary Pragmatism Vol. 9, No. 2 (December 2012), 5–34

Editions Rodopi ©2012

The Institutional Configuration of Deweyan Democracy William H. Simon

After more than two decades of effort to recover and adapt John Dewey’s thought for a reformed liberal politics, the institutional implications of his ideas remain elusive. This essay argues that a distinctive set of modern business practices and an incipient public policy architecture embody key precepts of Dewey’s political theory. The practices and architecture have developed independently of Dewey’s ideas, but they elaborate the ideas implicitly, and they are illuminated by them.

1. Introduction For much of the past century, Americans of all political persuasions have been happy to call themselves pragmatists. Yet the pre-eminent pragmatist philosopher in the realm of political thought – John Dewey – considered pragmatism inimical to what have remained the two dominant political ideologies in America – free-market conservatism and welfare-state liberalism. Dewey’s voluminous writings and tireless political activism did little to curb the promiscuous waving of the pragmatist banner. He showed important connections between the core ideas of pragmatism and the concerns of political theory, but his arguments remained vague about policies and institutions. After several decades of neglect, Dewey re-emerged as a major focus of attention among liberals in the 1990s. His rejection of both the bureaucratic welfare state and the rights-deducing judiciary seemed to have been vindicated by the difficulties of many liberal programs of the preceding years. His critique of both technocratic efficiency maximization and constitutional reasoning from first principles in favor of participatory democracy and deliberative consensus suggested to some a promising re-orientation of liberal thought. Yet, even after an outpouring of admiring re-examinations of Dewey’s liberalism, the institutional implications of his work seem elusive.1 In fact, Dewey’s version of pragmatism does have distinctive implications for government, but until recently these implications have been difficult to explain because there were few operating institutions that embodied them. This

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is no longer the case. Institutions have developed in a variety of spheres that seem to exemplify concretely the key aims and insights of Dewey’s vision. Some of the clearest and most developed examples have originated in business practice and then been applied in the public sphere. These practical developments have occurred independently of the revival of pragmatist political thought, but they complement it. Putting the revived theory together with the innovative practices gives plausibility to the theory and helps explain what’s politically significant about the practices. In section 2, I rehearse some prominent general themes of Dewey’s work and then suggest that they raise three key issues about Pragmatist-inspired political institutions: First, how can social norms be open to continuous reassessment and yet provide the stability needed for social order? Second, how do we empower diverse local groups while maintaining the ability to coordinate activity across a large nation? Third, how do we organize deliberative engagement to produce effective collaboration among people with diverse interests? In section 3, I argue that late 20th century organizational innovations suggest responses to these issues. I point in particular to three features of contemporary business organization – lean production manufacturing, standardized work and performance assessment, and team-based decision-making. The institutional forms associated with these practices have become increasingly salient in recent public policy development. They can be seen in many areas of regulation, social welfare, and civil rights. The central common feature of private and public organizational innovation is a focus on continuous learning and adaptation. In the private sphere, this focus entails rejection of the traditional distinction between conception of tasks and their execution. In the public sphere, it entails rejection of the traditional distinction between enactment of laws or policies and their implementation. Outside the business sector, there is no standard vocabulary for these reforms. Public-sphere practitioners sometimes use the terms “managementbased” regulation and “evidence-based” social service practice to refer to them. Academics have applied the names “responsive regulation” or “new governance.” Deweyan rhetoric is less common, but a few have suggested that the term “Democratic Experimentalism” better expresses the deepest aspirations and greatest potential of the developments.2 2. Pragmatism and Democracy Dewey built his idea of democracy on the key starting points of Pragmatism – instrumentalism and contextualism. The instrumentalist point was that our beliefs are, as William James put it, “rules for action.”3 In deciding whether to maintain them, we should focus on the kinds of action that follow from them. More provocatively, James suggested that “truth” was simply a name for a belief that had good consequences. The measure of truth is, not the extent to which a belief corresponds to some ultimate reality, but rather the extent to which the

The Institutional Configuration of Deweyan Democracy

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belief does valuable work for the believer. Of course, the consequences James had in mind were not simply material ones, but also cognitive and emotional ones. We have an interest in making sense of our experience, and a belief that helps us do that has good consequences. We have an interest in giving meaning to our lives, and a belief that helps us do that also has good consequences. So the consequential test does not turn us into materialists or relativists. It does, however, discourage us from worrying about some issues. Does a tree fall in the woods if no one is there to see it? Today this question is a joke used to characterize a kind of academic cluelessness. When we treat it as joke, we are taking for granted the consequential test. Some questions once hotly debated among philosophers seem pointless when we realize that they are unlikely to have answers that would help us enjoy, understand, or control the world.4 After the instrumental principle, the next distinctive tenet of Pragmatism is that knowledge is experiential. This term connoted something more contextual and/or more active than the vision of knowledge in the philosophers that preceded him. Some philosophers had emphasized the role of innate universal mental processes in enabling people to make sense of the world. Still others had portrayed knowledge as the accumulation of more or less discrete sensations or impressions from experience in the world. The Pragmatists emphasized that people use rules to interpret their experience, but they thought that to an important extent these rules were invented socially and individually. Individuals absorbed a stock of interpretive rules with membership in society; they formulated others out of their own experience; and they revised all such rules in the light of further experience. Pragmatists have been especially interested in the confrontation between the inherited stock of rules and new dissonant experience that doesn’t square with them. A stargazer notes a movement of planets that doesn’t correspond to the accepted laws of planetary motion. A soldier who has never questioned his duty of obedience to superior officers finds that following a particular order would require him to inflict harm on civilians that he senses would be unjustifiable. Or to take a more mundane but pervasive example: Someone who has always liked a particular kind of food, say pork chops, is served a dish of this kind that she dislikes. Situations such as these produced what the Pragmatists sometimes called an “irritation,”5 a sense of unease that led to a desire to reconcile rule and experience. In order to do so, a person would be inclined to reconsider and perhaps revise her rule. Knowledge is a perpetual learning process involving a series of such encounters. Modern science works self-consciously in this manner. The pragmatists thought that everyday life worked this way unconsciously. This picture of endless confrontation between rule and experience has characteristics that have often been attributed to American culture in general. On the one hand, it connotes a restless striving. Pragmatism denies us the comforts promised by some perspectives that a set of beliefs describes definitively an ultimate reality and thus settles some questions once and for all. Our theories,

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James said, “are instruments, not answers to enigmas, in which we can rest. We don’t lie back on them, we move forward....”6 On the other hand, the ceaseless revision Pragmatism exhorts is incremental, not revolutionary. Unlike Rousseau or Marx, the Pragmatists do not see progress as depending on the abrupt uprooting and replacement of whole systems of thought and practice. James described Pragmatism as “primarily a method for settling metaphysical disputes that otherwise might be interminable.”7 Dewey, however, envisioned a broader role. To James’s principles of instrumentalism and contextualism, Dewey added a distinctive conception of sociability. People are creatures of social context; their wants, beliefs, dispositions are influenced by their surroundings. Yet, at the same time, they have the capacity to alter their surroundings in accordance with their desires. And a person’s well-being, in both emotional and material senses, is a function of social interaction. Thus, collaboration comes naturally, and at its best, it takes the form of problemsolving – efforts prompted by commonly felt “irritations” to adjust surroundings in some beneficial way.8 Dewey criticized libertarian and laissez-faire theories for exalting the satisfactions of isolation and individual independence and neglecting the social dimension of personality. The most plausible individualism, he insisted – the kind that exalts and facilitates the greatest development of each person’s capacities and interests – can only flourish in relations of social collaboration. He saw American politics as failing to engage the solidaristic impulses of American citizens. He diagnosed the problem as both cultural and institutional. American public culture was preoccupied with individual satisfactions and autonomy and failed to provide any sense of common purpose or value. And political institutions failed to provide meaningful opportunities for participation in political decision-making. Dewey considered that latter failing more fundamental. He rejected the ideas of critics who thought that a moral reformation away from individualism toward a communitarian ethic was the place to begin. In response, he insisted that cultural change without institutional change would be ineffective. And he suggested that if institutional change induced effective public participation, a strengthened sense of solidarity and shared values would follow spontaneously. Dewey’s was not a family conception of sociability, attributing solidarity to shared background and culture, but a lifeboat conception that associates solidarity with the possibility and experience of beneficial collaboration. In a lifeboat, people collaborate because their welfare depends on it. Diverse values and perspectives are rarely disabling obstacles, and they are often beneficial by giving the group access to a broader range of relevant knowledge. Dewey was sympathetic to many arguments for democracy, but he made one that was distinctively grounded in his Pragmatism. 9 Democracy, he argued, was the politics best suited to effective problem-solving. This was so for at least two reasons. First, democracy was least tolerant of the kind of ossification of belief that he saw as the most basic problem of social order. At the core of

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Dewey’s social vision is a radical interpretation of the Pragmatist idea of thinking as the continual collision of acquired belief and new experience. Dewey taught that we depend on habit – actions based on acquired belief – because we cannot rethink every issue every time we make a decision. Yet, habit becomes a disability when it congeals into what he called “routine” – a mental rigidity that numbs the actor to new experience. Social practices and institutions are stabilized by inertia, but the circumstances to which they initially responded inevitably change. The inertia of routine causes practices and institutions to lag behind. The mental rigidity that inhibits adaptation to new experience, which James had portrayed as a psychological malady of individuals, was for Dewey the most central social and political problem. A key part of Dewey’s case for democracy was that it made public convention vulnerable to re-examination and challenge.10 The second reason why Dewey considered democracy a better mode of social problem solving was its capacity to elicit and take account of a broader range of evidence and views than other forms of government. Democracy maximizes participation in public matters, bringing to bear the greatest range of perspectives. The group can consider more alternatives in formulating its goals and more information in choosing ways of attaining them.11 During his time at the University of Chicago from 1894 to 1904, he founded and helped run the “laboratory school” which became a famous model for a distinctive form of pedagogy that remains his most developed example of Pragmatist practice. Dewey’s laboratory school and its successors disfavor the kind of educational experience in which teachers present information to a class assembled as a whole, and students either listen and take notes or respond individually to questions put to them by the teacher. In its most characteristic moments, the Deweyan classroom divided students into small groups and gave them tasks calling for collaboration and creativity. The groups designed and built pencil boxes for their own use, or they prepared meals for the class. When studying colonial history, they might plant crops or design a colonial town. Or they might act out a town meeting or a trial. When studying Indian tribes, one group might study and design shelter of the sort used by the tribe, while others might plan a hunt. The teachers framed the tasks and provided information about how to proceed. But learning came most importantly from the experience of devising and trying out different responses. Abstract learning built on such experiences. Thus, many practical building tasks involving measurement and calculation introduced mathematical skills and concepts that were later elaborated more formally. Artistic education was conceived in a similar fashion. The students’ general capacities for imaginative identification and elaboration were developed as they performed or created or responded to artistic works in groups. In the Deweyan classroom, the student learns to understand abstract learning as “helps and adjuncts in relation to more direct modes of experience.”12 This follows from the principle of contextualism. The pragmatist teacher takes the abstract systematized knowledge of mathematics, history,

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literature and other fields and “reinstate[s] [it] into experience”13 by presenting it in the form of practical challenges. Yet, at the same time, students are taught to move beyond immediate experience by subjecting it to speculative and analytical generalization. This effort follows from the instrumental principle. The student distances herself from her context when she considers how her understanding of it might illuminate other contexts. The capacity to generalize is a defense against the pressures of unreflective convention. “Ability to frame hypotheses is the means by which man is liberated from the existences that… play on him physically and sensibly,” Dewey wrote.14 In addition, this pedagogy built on Dewey’s notion of sociability. He expected that students would find collaboration intrinsically satisfying and that collaboration would encourage more than restrict individual development. Dewey interpreted the success of Pragmatist pedagogy in the Laboratory School as support for the possibility of a broadened role for collaboration in the political realm. Another key theme that Dewey extrapolated from the educational to the political realm was experimental inquiry. Properly structured, politics, like education, was a form of problem-solving. Again, political institutions failed to facilitate this type of politics in a democratic fashion. Dewey especially emphasized the problem of access to information. Citizens had trouble making use of their political opportunities because they lacked information needed to assess both problems and solutions. Information was monopolized by elites and made public in forms designed to advance their own interests, rather than public interests. Political reform depended on the democratization of information, which means, not just more access to information, but to information in a form that enables public identification of problems and assessment of solutions. “An inchoate public is capable of organization only when indirect consequences are perceived, and when it is possible to project agencies which order their occurrence.”15 Democratic participation requires new “instruments, appliances and apparatuses designed for the purposes of disclosing relations not otherwise apparent” and “a much greater range of variations” in policy responses.16 The closest Dewey had to a large-scale model for political organization was science. He repeatedly suggested that politics should emulate key features of the institutions of science – the commitment to testing belief against experience, freedom to criticize established views, transparency and free access to information, and a sense of collaboration among peers. In science, as Dewey envisioned it, anyone is free to challenge accepted beliefs. People respond to such challenges, not by attempting to resolve them abstractly, but by agreeing on procedures for testing the relative merits of competing propositions. A test typically involves controlled variation – the setting up of different but comparable circumstances in which the effect of different interventions on a common material or a common intervention on different materials can be compared. We measure the results in terms of agreed criteria. And then we assess the significance of the results for the challenged belief. The resulting conclusion is not established by bureaucratic fiat or by majority vote, but by an informal

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consensus among members of a loosely defined community of practitioners. The idea of science as a model for government seems radical because it denies the distinction between facts about the way the world is and values that suggest what it should be. There’s a tendency (still strong though less so than in Dewey’s day) to think of science as about fact and government as about value. Many and perhaps all social and political issues are value-laden. Methods designed to discover the structure of the physical world do not seem well designed to resolve competing notions of value. Technocrats respond to this objection by insisting that government is not really about values. They assume that to a large extent people want or need more or less the same thing, so that government is largely about technical questions of how to implement these desires and beliefs. This, however, was not Dewey’s idea. Dewey’s admiration for science did not lead him to contemplate putting scientists in charge of society as a technocratic elite, but to suggest that scientific norms and practices be diffused as the democratic practice of ordinary citizens. Against the technocrats, Dewey insisted that political questions were value-laden. Yet he further denied that there was any strong separation between facts (the province of science) and values (the province of government). If political questions were value-laden, they were also fact-laden in a way that made them susceptible to the kind of expanded, popularized scientific inquiry he envisioned.17 Political questions are fact-laden in at least two senses. In the first place, many commitments people think of as values depend on empirical assumptions. People’s views on abortion often depend on assumptions on such matters as the nature of the fetus at various stages in the course of pregnancy or what child-bearing will mean to the mother. People’s views on the death penalty often depend on assumptions on such matters as whether we can reliably distinguish guilty from innocent defendants in capital cases or whether the penalty deters crime. These issues are susceptible to investigation in accordance with traditional scientific methods. Dewey also had a more radical notion about the extent to which political controversy lent itself to scientific inquiry. People’s desires and commitments about values are in important senses, not just reports of their own interior states at the moment, but beliefs about the world – beliefs about what will make them or their fellows happy or virtuous or fulfilled. People revise these beliefs in the light of their own experience and what they learn of the experience of others. Moreover, these beliefs can benefit from imaginative or empathic elaboration in conversation with others. Thus, Dewey assimilated political conflict – the competing assertion of goals or values – to the “irritation” of new experience in tension with inherited knowledge that the Pragmatists saw as the basic fuel of progress in understanding. For Dewey, conflict is a learning opportunity. A person who encounters another pursuing competing public goals has a reason to re-assess her own and an opportunity to deepen her understanding through engagement with the other. It was the job of democratic institutions to facilitate this engagement in peaceful and productive ways.

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The most appropriate test of Dewey’s ideas would be a practical one. How do Deweyan institutions work in practice? The problem is that Dewey’s ideas usually peter out at the point of specific design. Nevertheless, among Dewey’s general themes, we find three important clues about institutional design. Deweyan democracy is provisional, local, and deliberative. Norms are provisional in a Deweyan democracy because government is a learning process. “[P]olicies and proposals for social action [should] be treated as working hypotheses, not as programs to be rigidly adhered to and executed. They will be experimental in the sense that they will be entertained subject to constant and well-equipped observation of the consequences they entail when acted upon, and subject to read and flexible revision in the light of observed consequences.”18 Provisionality implies a forward-looking perspective that is in tension with traditional legal culture. Legal culture tends to see the legitimacy of public action in terms of its “pedigree” – its connection to previously enacted or announced authority. Dewey was not contemptuous of authority. On an instrumentalist view, deference to authority serves various social purposes. It gives weight to the views of institutions that are relatively likely to have insight into or responsibility for the matter. It facilitates planning and coordination by enabling citizens to anticipate how officials will act. However, these values are not, for Dewey, as they are for traditional lawyers, fundamental and categorical. They merely represent consequences to be weighed against the consequences of revising or departing from established norms. 19 A Deweyan cannot deny that in theory there could be too much re-examination. Stability is a value. Without settled dispositions – habits – individuals would be schizophrenic and society would be anarchic. But the Deweyan perspective fears the centripetal social forces more than the centrifugal ones. Second, Deweyan democracy is also fundamentally local. “The local is the ultimate universal, as near an absolute as exists,” he wrote.20 The “final actuality” – the key sort of problem-solving resolution – “is accomplished in face-to-face relationships by means of direct give-and-take.”21 In such interaction, motivation to share effort and information is strongest. The larger society “will do its final work in ordering the relations and enriching the experience of local associations.”22 The emphasis on proximity also follows from the definition of issues. Groups are problem-focused and problems tend to be local in the sense that their effects and probable solutions vary by context. One of Dewey’s complaints about electoral politics was that it is too organized around abstract propositions. Such propositions are less likely to engage the interests and knowledge of citizens than problems they perceive as close to home. Moreover, general abstract propositions are likely to be framed in terms of ideologies, and ideologies are needlessly divisive because they are subject to the same tendency to congealment as institutions. Theories crafted in response to a practical situation persist unchanged long after the circumstances that inspired them have disappeared. Large corporations served the interests of a small elite. They created an internal culture of regimentation and conformity among their

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employees, and fostered an external consumer culture of materialism. Along with other leftists of the day, Dewey emphasized the irony that an ideology of laissez-faire individualism had produced a society of large institutions that stifled individual expression and development. Dewey saw the liberalism of the day as infected by the same overcentralization as the corporate economy. He criticized the New Deal for its reliance on top-down bureaucratic organization and the dominance by elite experts. He predicted they would do little to mitigate the dispiriting alienation of ordinary citizens from public life. And he was skeptical about the problemsolving capacity of technocracy. Expert-run bureaucracy would lack access to the kind of dispersed street-level information that was key to effective policy formulation. “The man who wears the shoe knows best where it pinches, even if the expert shoemaker is the best judge of how the trouble is to be remedied.”23 Yet, Dewey also thought that American government was in some respects under-centralized. The effectiveness of the local problem-solving efforts he considered fundamental depended on the support of more encompassing institutions that had yet to develop. “We have inherited ... local town meeting practices and ideas. But we live and have our being in a continental nation state,” he lamented.24 For him, the most important deficiencies of traditional decentralization were not the limited capacity to deal with spillovers (like pollution) or public goods (like defense) that contemporary theorists emphasize. Rather they concerned the process of mutual learning or “emulation.”25 The role he most emphasized for central government was in organizing knowledge and protecting the conditions of inquiry. Third, Deweyan government is deliberative because deliberation enhances the chances for the participants to learn from each other, and because deliberative agreement is the most basic test of the legitimacy of public action. Sound resolution requires the informed agreement of stakeholders. 26 In deliberation, people advance their positions through reasons, and they have a duty to reconsider their claims in the light of the reasons advanced by others. Thus, not only do people have an opportunity to learn from their peers about different ways of attaining their goals, but they have an opportunity to consider and reconsider what their goals are. Deliberation tends to favor consensus over majority rule but not dogmatically. Literal consensus is often impossible either because views never converge or because “hold outs” behave opportunistically. But simple majority rule is objectionable where it obviates the need of an initial majority to listen seriously to and try to persuade minority. As Dewey said, quoting Samuel Tilden, “The means by which a majority comes to be a majority is the more important thing.” “Counting heads” is most important, not because it weighs preferences, but because it “compels prior recourse to methods of discussion, consultation, and persuasion.”27 These general characteristics – provisional, local and deliberative – hardly add up to a concrete or coherent institutional vision. Indeed, in some

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respects, they exacerbate the ambiguity. Three questions remain salient. First, what does a structure of laws or norms look like that isn’t prone to congeal? How can precepts be open to continuous re-assessment and yet provide the stability needed for effective social order? Second, how do we empower diverse local groups while maintaining the ability to coordinate activity across a large nation? What kind of institutions can coordinate local communities without excessively centralizing and homogenizing? Third, there are a set of questions about the construction of “face-to-face” problem-solving deliberations. How do we achieve effective participation without excluding people who want to participate or conscripting people who don’t want to? How do we avoid the problems of unreflective intransigence (e.g., group polarization) on the one hand and unreflective conformity (e.g., herd behavior) on the other? When agreement is reached, how can we be sure that it reflects convergent, reflective views, rather than background social pressures? Dewey’s failure to answer these questions has left the field to those who recognized the same problems as he but thought that the market was the only non-Utopian answer. Notably, Friedrich Hayek defended the market as responsive to more or less these three questions. 28 Hayek shared Dewey’s belief in learning as the key engine of social progress, and in the need to subject settled practices to destabilizing challenges. Like Dewey, he disdained bureaucracy. But unlike Dewey he was skeptical about the possibility or desirability of collectively regulating the aggregate consequences of individual interaction. And again in contrast to Dewey, he disdained reliance on social solidarity and saw little promise in face-to-face citizen engagement. For Hayek, the impersonal operation of the market played the key role in social learning and development. Markets generate productive destabilization within constraints. The ability of entrepreneurs to offer new products or better prices subjects producers to continual pressure to improve. The market fosters both diversity and coordination through the price mechanism. Prices coordinate by directing resources toward their most productive uses, but since the price system demands of economic activity only that it pay its costs, it leaves economic actors free to produce an infinite array of products in response to the preferences of consumers. The price system does not, of course, induce public deliberation, but in the Hayekian vision, it virtually eliminates the need for it. Dewey rejected this answer. While he respected the capitalist market as an engine of innovation for private goods, he complained that its destabilizing tendencies were too reckless in some respects and too timid in others (for example, in its respect for concentrated property). Moreover, he thought that even within the range of choices the market permits people to make, people don’t know enough to choose intelligently and that the market doesn’t help them learn. He thought that innovation would require institutions modeled on science – those that facilitated cooperative investigation and sharing of information – as well as those fostering competition.

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Dewey and Hayek are probably the thinkers who have most influenced American social thought in recent years. Yet Hayek’s influence on public policy appears to have been greater than Dewey’s in part because Hayek’s followers have had an easier time deriving specific cues for practical reform from his work. 3. Institutional Design What would Deweyan institutions look like? While Dewey’s views have salient affinity with some prominent contemporary political perspectives, these perspectives tend not to incorporate the full range of Deweyan commitments. There have been many recent defenses of deliberative democracy, but they tend to prescribe deliberation primarily for broad sectors of civil society or for generalist electoral and legislative processes.29 By contrast, for Dewey, both the efficacy and the legitimacy of political participation correlate with interest. Deweyan deliberation is most characteristically stakeholder deliberation. Moreover, proposals for deliberative democracy often assume or in some cases (notably Jürgen Habermas’s30) posit explicitly that the decisions of generalist political institutions be implemented in a conventionally bureaucratic fashion. In the Deweyan view, however, deliberation spills over into implementation. Another recent perspective, particularly salient in the “alternative dispute resolution” literature, promotes deliberative problem-solving by people recruited because of their interest in the matter or by local communities where nearly all members are likely to be interested.31 But in much of this work, the core values are harmony and stability. Deliberation is an ad hoc response to disruption, and its key purpose is to re-establish equilibrium. Dewey’s emphasis on the dangers that consensus will ossify and on the need for institutionalized diversity as a spur to re-assessment and discovery are absent. Moreover, some of this work adopts the Deweyan theme of decentralization without paying heed to Dewey’s sense of the inadequacy of “New England town meeting” style organization to the conditions of modernity. The ideas and practices that most resonate with Dewey’s political views combine local deliberative problem-solving by stakeholders with encompassing institutions that pool the knowledge gained from these deliberations in ways that support and discipline them. There have recently been some general accounts of such a framework.32 I focus here on three sets of practices that promise to play an important role in their elaboration. In each case, the practices first became salient in business organization and have more recently influenced practice in the public sphere, for example, in the form of “management-based” regulation and “evidence-based” social service practice. Although they have been developed for the most part without reference to Dewey, they seem to align quite closely with his concerns. The practices are responsive to the three questions posed above about Deweyan institutionalization. Lean production illustrates how a system can

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combine routine destabilization of settled practices with productive order. Standardization illustrates the potential to foster diversity without sacrificing the ability to coordinate. And team-based decision-making shows how the benefits of deliberation can be obtained without definite solutions to fundamental issues about participation and decision making. Each of these practices is potentially useful in elaborating Dewey’s repeated claim that democracy depends on “a kind of knowledge and insight that does not yet exist.”33 This knowledge involves “conceptions which are used as tools of inquiry and which are tested, rectified, and caused to grow in use.”34 Each practice facilitates a type of learning that is potentially democratically empowering. 3.1. Lean Production – Implementation as a Learning Process A distinctive approach to manufacturing emerged in the decades following World War II. The approach is associated with terms such as “lean production” and “total quality management.” Because Toyota, the Japanese car maker, has pioneered in its development, it is also known as the Toyota Production System (TPS). TPS, as described in a vast engineering literature, may be the most developed example of Dewey’s idea of a social order that continuously reassesses and reforms by destabilizing itself.35 TPS involves a variety of ideas and processes, but the most critical one for our purposes can be summarized in terms of the Deweyan maxim: Problems are learning opportunities. In manufacturing, a problem is an occasion when following the usual procedure will not produce the intended effect. A car entering the paint station of an assembly plant has dirt on a fender; if painted over, it will be unsightly. Or a part to be inserted in the engine does not fit properly. Pre-Toyota, there were two traditional responses to problems in mass manufacturing processes, both designed to minimize disruption. Problems could be ignored by workers in the main production lines and saved for specialized rework departments. Thus, the line worker could paint over the dirt and leave the unsightly fender for inspectors to identify at the end of the line and send to a remedial department to sand, clean, and repaint. Alternatively, the line workers might be permitted to make quick ad hoc adjustments that would mitigate the effects of the problem without impeding production flow. For example, workers might be given a stock of “buffer” inventory – extra spare parts to use in case one turns out to be defective. When the worker finds a defective part, she puts it aside and reaches into her buffer stock. End-of-the-pipe correction and ad hoc adjustment allow the system to proceed according to rule. At some point, a centralized engineering department will learn of the problem, work out a revision of basic procedures, and write new rules. Until then, it’s business as usual. From a Toyota perspective, these approaches are wasteful and slow. It takes too long for information about problems to accumulate at the top of the management ladder, and too long for the elite corps of engineers to re-write the

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rules and transmit them to the workers. In the meantime, waste accumulates. Wasted parts continue to arrive with defects because the flaw that produces the defects goes uncorrected; labor is wasted in re-working things that did not get put together correctly the first time. The innovation of Toyota approach is to treat every problem as an occasion for re-assessing and reforming the system. In a classic Toyota-style plant, there are no re-work departments, and workers are told not to make ad hoc adjustments in response to the problems. Instead, workers should stop the production process and trigger a group effort to diagnose and remedy the problem. When the dirty fender or the defective part appears, the worker pulls the “andon” (lantern) cord that hangs from an overhead fixture. The line stops and a light display shows everyone in the plant where the problem is. A team of workers and supervisors who are likely to have relevant knowledge is quickly assembled, diagnoses the problem, and formulates a remedy. The rules get rewritten immediately. Problems are learning opportunities because they signal that the system is not as well designed as it could be. Waiting to let some specialized department figure out and remedy the problem means delay and risks loss of information. It also means that rank-and-file workers will not have the learning experience of participating in the solutions. A learning opportunity is at least potentially a good thing. Thus, the Toyota system is designed in some respects to increase and enlarge problems. One way the system increases problems is through just-in-time parts and materials practices. Parts are delivered in small batches as needed for short periods. This means no buffer inventories. If a part is defective, there is no alternative but to wait for a new one, and there’s an opportunity to fix the problem before more defects accumulate. One way the system enlarges problems is through “root-cause analysis.” Problem-solving does not rest content with superficial fixes but looks back through the system for opportunities for improvement. The rule-of-thumb is to go back five stages. Hence the “5 Whys.” For example: Why is machine A broken? Because no preventive maintenance was performed. Why was the maintenance crew derelict? Because it is always repairing machine B. Why is machine B always broken? Because the part it machines always jams. Why does the jam recur? Because the part is warped by heat stress. Why does the part overheat? A design flaw. The system thus embodies the Deweyan ideal of allowing, even encouraging, participants to question its norms and premises in an organized fashion. Of course, as long as the questioning is limited to means for producing a given product, it is limited by the specifications of the product. But the Toyota process of continuous production improvement lends itself to processes of

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continuous product redesign. As the firm receives information from customers, competitors, and its own engineers that suggest ways to improve its products, it can introduce product improvements quickly in the same way in which it makes improvements to the production process. Design engineers sometimes work in teams with rank-and-file workers so that small design improvements can be quickly added. More ambitious changes require more preparation, but they can be more quickly assimilated by a workforce skilled in the practices of continuous reform. To get an idea of how Toyota-style production practices might be relevant to democracy, consider that fundamental features of our traditional government structures resemble pre-Toyota manufacturing. We have hierarchical rule-bound bureaucracies that engage in routine production of, say, education, workplace safety, or crime control. When routine leads to counterproductive conduct, we deal with problems either by giving officials ad hoc discretion to deviate from the rules or by allowing aggrieved citizens to go to a parallel system of error-correction and re-work – courts. The courts intervene to correct particular errors in cases that are presented to them, but their interventions do not necessarily reveal or remedy the underlying causes of the errors in the process of routine administration. As with traditional industrial production, complaints about loss of information and sluggish response to problems are frequent in the public sphere. These complaints have prompted public-sector reforms that have some resemblance to TPS. For example, consider the recent proliferation in health and safety regulation of reporting and analysis requirements with respect to harmless mistakes. In industries like airlines or nuclear power, where accidents are rare but enormously costly when they happen, there is a long-standing practice of reporting and analyzing “near misses” – performance failures that do not cause injury but are symptoms of problems that could. The requirements typically include a “trace-back” or “root cause analysis” that constructs a causal chain back into the system potentially to stages remote from the immediate cause. Analogous procedures have recently been extended to areas such as hospital medicine and food safety. These regimes typically treat discrete violations of an exacting standard as an occasion for a diagnostic inquiry into the possibility of potentially remediable systemic defects.36 Below is a page from a sample food safety plan under a regime known as Hazard Analysis and Critical Control Points (HAACP) widely used in the European Union, and more recently, the U.S. In HAACP-type regulation, the regulator declares general goals but requires the regulated actors to formulate their own plans for achieving the goals. The regulator then assesses the adequacy of the plans and audits the actors’ compliance with their own plans. Note how the plan mandates that non-compliance be treated diagnostically. When specified standards are not met, the firm has to engage in “corrective/preventive action,” which means not just an immediate fix but an evaluation of the “cause of deficiency,” as well as a “verification process,”

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which involves a continual re-assessment of the adequacy of the standards and control measures.

Figure 1. U.S. Department of Agriculture, “Pathogen Reduction: Hazard Analysis and Critical Control Point (HACCP) Systems – Final Rule,” Federal Register (July 28, 1996), at 38902.

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Toyota analogues in the social services area can be found in monitoring systems in programs for mental health patients, developmentally disabled people, and abused and neglected children. An especially sophisticated example is the “Service Testing” model developed by the Child Welfare Policy Group in Alabama, which is being used in the child protective services of twelve states. The model involves intensive reviews of individual cases by teams of inside and outside reviewers, with the participation of the case worker, and with interviews of the clients and service providers. The review is intended in part as a form of training for the workers and often the reviewers. (Often the team will include an experienced and a new reviewer. The workers themselves may become reviewers of other workers cases.) The review involves detailed qualitative discussion of all aspects of the case that the participants consider relevant. It also generates numerical scores of the system’s performance and the child’s well-being and progress. The scores are aggregated to generate diagnostic indicators of performance of different, regions, offices and workers, or of the system as a whole with respect to different types of cases or problems. “The fundamental assumption of the Service Testing model,” according to the Group’s literature, “is that each case is a unique and valid test of the system.”37 Processes of this kind exemplify the kind of structured destabilization Dewey seemed to call for. They inhibit the ossification of established practices by inducing continuous re-examination through a combination of exacting standards that generate problems/learning opportunities and by a diagnostic approach that treats problems in systemic terms. Yet the reconstruction they encourage is incremental. Root cause analysis limits examination to the portions of the system that seem implicated in particular problems. Change occurs constantly, and it is thoroughgoing, but only as a consequence of a series of discrete steps taken as experience reveals opportunities. 3.2. Standardization: Diversity-increasing Coordination Dewey often associated “standardization and uniformity” with the stultification of bureaucracy, but more than once he suggested that the connection is not an inevitable one. In The Public and Its Problems, he wrote “Uniformity and standardization may provide an underlying basis for differentiation and liberation of individual potentialities.”38 He did not elaborate this idea there, but we get some idea of his meaning from his discussion of abstraction in science. Standardized measurement, which abstracts from the rich particularity of objects, is critical to science. It is “a paradox” that by “turn[ing] our backs on the immediate qualities of things,” we can increase our understanding of their “relations” to other things. “The possibility of control of the occurrence of individual objects is thereby increased. At the same time, the latter gain added meaning for the import of the scheme of continuity of relationships with other things is incorporated within them.”39 In science, we test hypotheses by designing interventions and measuring

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their consequences. Science works best within a broad and diverse community, but it can be a community only if it has standards for describing interventions and assessing consequences. If we want to investigate whether aspirin abates fever, we need uniform ways of describing interventions (composition and dosage of aspirin) and consequences (change in patient condition). The same point applies to experimentalist business enterprises. Lean production proponents advise, “Continuous improvement methods depend on identifying, setting, and improving standards. Standards form the baseline for all improvement methods and they define the breakthrough goals you strive to meet as your continuous improvement activities gain momentum.”40 Standardization increases both the number and the diversity of users and developers of a practice or product. Any lamp that you buy in an American furniture store will plug into most of the sockets in any American residence. This is because both lamp plugs and home sockets are made to a single compatibility standard. The resulting market of numerous and diverse consumers supports the creation of a vast array of products. With any of the internet search engines you find on your personal computer, you access any of the millions of sites on the World Wide Web. This is because both engines and sites use the program http (hyper-text transfer protocol). People who learned to type on a QWERTY keyboard are able to operate the keyboards of thousands of other machines that use this format. In each case, a standard that harmonizes one dimension of a product or practice facilitates the creation of networks that can produce products or practices that vary along many others. By precluding variation on some dimensions, standardization facilitates the identification and constitution along other dimensions of sub-groups large enough to facilitate products tailored to their needs or tastes. Without some standardization, demand would be so fragmented that tailored products could not attain feasible scale. Standards can be mandatory or voluntary. The plug size in a residence is mandated by building codes, but no law requires manufacturers of thermometers to use the Fahrenheit scale. Yet the example of the thermometer shows that practical pressures behind some voluntary standards can be as powerful as the legal ones behind mandatory ones. Once a critical mass of other patients and doctors are using the Fahrenheit standard, it becomes prohibitively costly for me not to. Using an idiosyncratic scale would mean that the vast literature on diagnosis and treatment of medical conditions comparable to mine that uses that standard would be of relatively little use to me. Standards can be relatively beneficial or relatively harmful. Relatively poor standards may incorporate inferior technology. (The QWERTY keyboard and the Windows operating system are both inferior to alternative technologies.) They may not be sufficiently detailed. (The U.S. Department of Agriculture’s standards for labeling “organic” food have only a single classification, so that a variety of important distinctions among products that meet the criteria are ignored.) They may be unnecessarily restrictive. (AT&T used to standardize its system so that only equipment made by its manufacturing affiliate could connect to its network.)

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Standards can be developed by government agencies, like the Department of Agriculture, or by non-governmental organizations, like Underwriters’ Laboratories. Governmental agencies sometimes give privately formulated standards the force of law by adopting them as or incorporating them into regulations. Many cities and states have taken their housing and building codes from the standard codes of the International Conference of Building Officials, a non-governmental organization. Even when standards remain private, they are often backed by strong economic pressures. This creates a potential for abuse. Firms and groups have incentives to try to influence standards to their private advantage, as AT&T’s practice indicates. Thus, when private standards acquire strong economic power, the anti-trust laws are supposed to constrain the ability of people to manipulate them for private advantage. The charge that AT&T’s standard for interconnecting phone equipment was not socially efficient and was designed to give monopoly power to its manufacturing affiliate was an important part of the case that led to the break-up of the telephone giant. It’s also possible that too many private standards will catch on, fragmenting the market in ways that are inefficient. Last time I had to replace the battery for my watch, I found 20 different sizes at my local drug store, but not one that fit. During the same period that has seen the emergence of Toyota-style production practice, standards have proliferated and standard-setting organizations have multiplied and grown. This trend has reflected and facilitated the decentralization and dispersion of economic activity in the increasingly global economy. In the electronics industry, for example, the small-company economy that has flourished in Silicon Valley and recently spread to places that include Taiwan, Israel, and India depends on technical standards. Standards enable small companies to design portions of semiconductor chips knowing that they will fit into the larger chip, or whole chips knowing they will fit with an array of different central processing units. Software designers can write programs in their living rooms for PCs, knowing that, if they adhere to PC technical standards, the programs will run on any PC. Standardizing the PCs reduces their diversity, but it vastly increases the diversity of available applications. Without standardiztion, every type of chip would need specific hardware and software configured for it. It would be much harder to disperse tasks among small enterprises and much more likely that a smaller number of large companies would internalize the making of all the components.41 We can distinguish two diversity-promoting effects of standardization. Standards make local practice more self-conscious and transparent. In doing so, they undermine the homogenizing tendency of tacit, unreflective generalization. Standards also increase the capacity to coordinate and compare across localities, and hence the range of available particularized adaptations. Both effects can be seen in a range of standard-based innovations in the public sector. Traditional professionalism resists standardization on the ground that it rigidifies judgment and limits its capacity to respond to particularity. But professions have recognized increasingly that the kind of informal tacit

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judgment traditionally treated as paradigmatic has rigidities of its own. It is vulnerable to unconscious and inarticulate stereotypes developed from prior experience. These stereotypes can be more dangerous than standards because they are less readily subject to critical examination and testing. By forcing people to articulate their presuppositions, standardization exposes them to interrogation and investigation. In medicine, diagnostic protocols dictate interventions in the presence of a prescribed set of observations, many of which themselves involve standardized measurements like temperature and blood pressure. Standardized protocols have been shown to out-perform all-things-considered professional judgment for the treatment of cardiac emergencies, and computerized administration of medication seems to out-perform non-mechanical judgment. Where informal judgment remains important, standards are often used to structure decision-making to insure that some considerations are not ignored either because of cognitive failures or failures of coordination (for example, where each participant mistakenly assumes that one of the others is taking care of a critical task).42 Marie Clay has developed an approach to teaching reading that prescribes standardized recording that produces records like this:

Figure 2. Marie Clay, An Observation Survey of Early Literacy Achievement 62 (2nd edn 2005)

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She argues for this practice as a corrective to the tendency of informal observation to reflect unconscious influences. Without standardization, “[y]ou bring to the observation what you already believe,” Clay warns.43 Officials in the juvenile justice systems of some localities, including Portland, Oregon, and Santa Cruz, California, found that when they introduced standardized “risk assessment instruments” at the expense of traditional informal judgment in decisions about arrest, pretrial detention, and sentencing, both the aggregate amount of incarceration and its disproportionate incidence on minorities abated. When examined, informal judgments turned out to rest on tacit criteria that disadvantaged minorities, such as associating youth from singleparent families with higher risk. When examined empirically, some of these criteria proved to be no better predictors of non-appearance or recidivism than less discriminatory ones.44 When we ask the professionals to articulate their premises so that we can turn them into standards, or to compare their intuitive judgments to established standards, we are engaging in a pragmatist learning process. We are subjecting preconceptions of past experience to the potential “irritations” of new experience. The pragmatist treats intuitive judgment and formal standards as potentially mutually corrective irritants. Each can be questioned and revised in the light of the other in a process of continuous re-assessment.45 The second diversity-increasing effect of standardization arises from our enhanced capacity to coordinate across localities. A key domain of coordination is investigation and learning. Standardization increases the ability to appraise and learn from comparisons. Comparisons across localities can enhance political accountability within each one. And rich standards applied to a large and diverse population increase the likelihood of finding solutions that fit particular needs. In Democracy by Disclosure, Mary Graham suggests that recent health and safety regulation works to induce a kind of local activism she calls “technopopulism.”46 An example is the Toxics Release Inventory (TRI), a federal system that mandates reporting in terms of a standard metric discharges of specified toxic substances. The metric is crude, and there are serious problems of design and implementation in the program. Nevertheless, the regime seems to have had a substantial effect in reducing discharges. The federal data have been widely disseminated by the media. Nongovernmental organizations and state and local governments have pushed for improved performance from nearby facilities, and industry has undertaken a variety of efforts in response to or in anticipation of such pressures, or simply in the interest of good public relations. The TRI metrics do not themselves attempt to facilitate comparisons along dimensions other than volume of discharges, but other systems are more ambitious. In a few states, mortality rates for certain kinds of surgery are reported by hospital (and even by surgeon). After reports that surgeons responded by avoiding high-risk patients, the measures were enhanced with an algorithm designed to adjust for several factors bearing on the riskiness of the patients.

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Regulators assess the performance of banks under the mandate of the Community Reinvestment Act that they lend to low and moderate-income residents of their service areas by constructing peer groups of banks in similar economic and demographic circumstances and comparing their performances. The New York City schools system reports the performances of individual schools on several dimensions both on a general scale and in comparison to a 16-member peer group of schools with student bodies of comparable prior achievement levels and demographics.47 The course of “standards-based” educational reform has been rocky, but some of its key initiatives aspire to develop standardization in ways that produce individuation both by enhancing the local transparency of practice and facilitating the identification of effective tailored strategies across sites. The federal No Child Left Behind Act required that states set their own standards of educational progress and than measure and report to their citizens on their degree of success in attaining them. It prescribed a standardized national test (the National Assessment of Education Progress) to facilitate comparison of progress across states. Local school performance must be reported to parents on “report cards.” The Act had many defects, but some of them have been addressed with promising developments. Forty states have agreed to develop a set of “common core” educational standards that will provide richer and more uniform benchmarks than the state-by-state proficiency thresholds. A consortium of non-governmental organizations has organized a “Data Quality Campaign” to generate political pressure and provide tools to improve testing. The Obama administration organized a competitive grant program called “Race to the Top” to support the improvement of student achievement data and to develop accompanying “Instructional Improvement Systems” that connect diagnosed achievement deficits with remedial interventions that are both standardized and individualized. An Instructional Improvement System is illustrated by the diagram from the Maryland’s Race to the Top 2010 application, available online at www2.ed.gov/programs/racetothetop/phase2-applications/maryland.pdf on p. 123. The system contemplates that the teacher start with a subject defined by the multi-state “common core” curricular standards. She then plans and executes a lesson tailored to the abilities of her class; tests the efficacy of the lesson; follows up with remedial interventions targeted on the weaknesses revealed in the assessments, if necessary differentiated for different groups or individuals. Then she re-assesses. In doing so, she draws on standardized guidance for the lessons, standardized assessments, and remedial instruction standardized to particular weaknesses (as portrayed in the “toolkit gateway and portal”). No doubt many subjects do not lend themselves to this type of instruction. But for those that do, the system potentially captures the individualizing capacities of standardization. With rich standards and assessments, diagnosis can identify local and individual weaknesses. With a sufficiently extensive repertory of remedial interventions, responses can be customized. Of course, no single class

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or school could develop a large repertory. The system depends on the ability to identify effective interventions across localities through standards that connect the interventions to the diagnoses. Dewey’s work on education was focused on the individual classroom or school. He did not consider specifically the larger architecture of a democratic school system. But Race to the Top seems responsive to his general suggestion that we take inspiration from the organizational structure of science in designing public programs. To say that standards can promote decentralization and diversity is not to say that they will do so, or even that they have a general tendency to do so. Whether they do so or not depends on the nature of the standards and the surrounding institutions. Since standards are public goods, governments may have to intervene to subsidize or produce them. Where private groups produce them, government will have to monitor both the standards-making process and the industry structure that results from standards. Thus, standards have become a central preoccupation of antitrust and intellectual property law. 48 The challenge of a democratic politics of standards is to craft public subsidies, antitrust penalties, and intellectual property rights so as to enhance diversity. The key point is that such a politics has precisely the superficially paradoxical qualities Dewey asserted: it must be carried out through national institutions and practices, but if successful, it will promote local autonomy and diversity. 3.3. Team-based Decision-making: Bracketed Consensus Business practice has also produced suggestive answers to the questions of democratic participation: How do we induce the participation that’s needed while keeping numbers within manageable bounds? How do we deal with opportunism and unreflective conformity? The answer we find in the theory and practice of recent business organization might be called bracketed consensus. There are really two ideas. The first is that proceedings oriented toward consensus can, in some situations, achieve productive learning and coordination. The second is that consensus processes can be nested in structures with different kinds of institutions in order to limit them to the situations in which they are most likely to be effective.49 Consensus implies deliberation among stakeholders aimed at producing general agreement. A stakeholder is anyone affected by the problem under consideration. Deliberation means discussion in which people are expected to give reasons for their views and be open-minded toward the views of others. “Agreement” is a little harder to define. Literally, consensus means unanimity. Every participant has to sign on for a decision to emerge. In practice, however, people recognize that complete agreement is often impossible to achieve (and that even when it is achieved some people may agree only because they feel pressured to do so). Moreover, a procedure that gives everyone a veto permits hold-outs acting in bad faith to block decisions they know are generally

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beneficial unless they are given some private benefit. So consensus-based decision-making treats unanimous agreement as a goal, not an absolute requirement. The group hopes for consensus, but it will settle for less if that proves impossible. How much less is unspecified, but a decision supported by a mere majority would not be viewed as a success. Process norms require participation through persuasion rather than threats. Deliberators must try to justify their positions in terms of broadly shared interests or norms of sufficient generality to be plausibly expected to command general assent. The meaning of consensus also depends heavily on the bounds of the group within which consensus is sought. Eligibility for participation is typically described in inclusive but vague terms. The processes aspire to recruit representatives of all affected interests. But convenors or other actors often have discretion to screen or limit participation. The goal of consensus-based decision-making is to induce people most likely to have relevant information and ideas about a problem to provide it and to engender commitment to the ultimate decision from the people who will have to implement it. Of course, it is more difficult to reach consensus than to make a decision by majority-rule. That’s part of the point. With majority rule, once a view becomes dominant, there’s no strong pressure to listen to or consider others. Thus, there’s a strong risk that views that are initially widely but unreflectively shared won’t be fully examined. By contrast, consensus-based decision making requires the group to confront the views of everyone who speaks. And consensus-based decision-making increases the chances that any given participant, even one with unusual views, will have an influence. Consider how such a process mitigates the concerns with which we began. Pressures toward unreflective conformity are reduced by the fact that the participants have individual interests and stakes in the matter that they will be motivated to defend. If affected interests are broadly represented, the dispersion of interests should impede premature closure. Problems of opportunism or bad faith are likely to be more severe, but there are well-known counter-pressures in the deliberative setting. As Dewey emphasized, the process of respectful engagement seems to have a tendency to induce solidarity. People forced to assume the guise of collaborative, public-regarding citizens sometimes come unconsciously to identify with their roles. Or they may come to feel trapped by their own rhetoric into altruistic measures in order to save face. Perhaps most important is the basic Deweyan hope that they will discover new insight about themselves (that is, they will reconsider their initial understanding of their private interests) or about the practical possibilities of reciprocal gain.50 This structure also creates at least modest pressures toward both inducing and limiting participation appropriately. As opposed to majority rule or a dictatorship, a consensus process gives each participant a greater chance of influencing the outcome. This greater chance of influence may induce people who would not choose to participate in other processes to join a consensus-based one. At the same time, the commitment to consensus may cause others not to

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participate. Where decision is by majority vote (and admission is open), people may feel inclined to show up just to add the weight of their vote to positions that are already well represented. But where decision is by consensus, such people may feel that, as long as their views are adequately represented, they do not need to show up. The consensus goal thus has some tendency both to induce participation by those likely to make important contributions and to reduce it by those whose participation would be duplicative. At the same time, Dewey inspires hope that the focus of deliberation on concrete problems shared by the deliberators will facilitate agreement. Here Dewey’s ideas resonate with two prescriptions of recent negotiation theory. The first, in language associated with Roger Fisher and William Ury, is “focus on interests, not positions.”51 Interests are relatively concrete needs or desires divorced from strong presumptions about causes or solutions. “Improving the capacities of lagging students” is an interest; “charter schools” is a position. The pragmatist idea is that ideological abstractions tend to evolve away from the concrete interests that they originally responded to. The remedy to re-focus on the concrete and the practical. The second prescription is to treat proposals as hypotheses for investigation. To treat a proposal as a hypothesis requires that means of testing it be specified and that the tests be built into the reform. Specifying tests is a form of intellectual discipline that may lead to productive clarity; running the tests facilitates learning.52 Of course, these points suggest no more than that the disadvantages of deliberation might sometimes be neutralized, not that there is any tendency for them to be. The most convincing reason for optimism about deliberative processes is that there are many examples of its successful operation. Consider two in areas we have just touched on – the Toyota production system and standard-setting. In Toyota-style manufacturing plants, when a worker pulls the andon cord, a problem-solving deliberation ensues. “Anyone with relevant knowledge of a problem is included, regardless of rank.”53 The group strives for a consensus solution and often achieves one. Standard setting processes are similar, though they draw on an array of stakeholders that extends across firms, and often, national boundaries. People and organizations with an interest in the matter are invited and sometimes actively encouraged to participate. They deliberate in person or by exchanges of correspondence. A wholly successful deliberation produces consensus, though sometimes, the group has to settle for less. An example is the Engineering Issues Task Force (EITF), which plays a central role in writing the protocol for transmission of information over the internet – hypertext transfer protocol, or http. The EITF is responsible for drafting revisions to the standard. The task force has virtually no formal membership. Anyone can attend its meetings, and anyone who attends is eligible to participate in the working groups that develop standard revisions. The groups strive for, and generally achieve, “rough consensus” – “something less than full unanimity but something more than a majority of those present.”54 The deliberative pressures toward information-

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sharing, re-assessment, and solidarity play a role in the success of these processes. They are not the whole story, however, and this brings us to a second response to the limitations of deliberation – bracketing. Deliberative processes are not necessarily free-standing; they may be nested in larger structures that may take a different form. At Toyota, for example, problem-solving deliberations take place against a background of more conventional relations in which the corporation as employer has broad hierarchical control rights subject to the employment and collective bargaining rights of the unionized employees. In the internet protocol regime, a standard that emerges from the consensus process only becomes effective when it receives the approval of the Internet Architecture Board and the Internet Engineering Standards Group, more exclusive, hierarchical organizations than the IETF. These surrounding institutions stand as checks on the capture by private interests or the stalemate of the deliberative processes. They can also channel issues to these processes that are most likely to be effectively resolved there.55 Dewey remains a helpful guide on the question of what types of issues are best suited for consensual deliberation. It’s common to suggest that deliberation works best with instrumental issues rather than “questions of value.”56 But he famously rejected this distinction. Values, he argued, are predictions that the world will be satisfying if certain conditions obtain. We inevitably test and revise these predictions in the light of experience, and we can and should do so more systematically. In Dewey’s view, the key conditions of deliberation are uncertainty and interdependence. Uncertainty means that that the solution to the problem is not fully known; addressing it must involve investigation. Interdependence means that no subset of the stakeholders can act effectively alone. These two conditions entail that no actor or coalition capable of imposing a solution is confident what the right solution is, and no one who feels certain about a solution is able to impose it without engaging the others. The interdependence condition is not exogenous to institutions. What people can do on their own is a function of their legal and social endowments. Encompassing institutions can alter these endowments in order to generate productive local collaboration. This practice is exemplified by what economists call the “penalty default” and some Deweyans have called the “destabilization right.”57 The penalty-default idea comes from business law, but it has notable applications in public policy. For example, the Endangered Species Act provides that land development that would impair (“take”) certain listed species cannot proceed unless the developer produces a Habitat Conservation Plan acceptable to the Secretary of the Interior. A plan acceptable to the Secretary generally requires the developer to engage and, ideally, win the agreement of stakeholders, including environmental groups. In effect, this scheme changes the applicable property rule for covered land from free development to no development. The new rule is a default rule because it governs only in the absence of an acceptable alternative agreement. But it is not a conventional default rule. A conventional default reflects the legislator’s or regulator’s judgment about what the best

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outcome would be in the absence of agreement. But that is not what is going on with the Endangered Species Act. Few people think that no development at all is likely to be optimal. However, the legislator or regulator could not herself specify adequate conservation plans for all affected property. A penalty default is designed to induce the better informed or more powerful party – in this case, the developer – to engage with others to produce a more satisfactory response. A “destabilization right” refers to a more ambitious form of this type of intervention. In recent decades, federal courts have proved willing to intervene to induce the restructuring of public institutions, such as schools, prisons, housing authorities, and child welfare systems, that have chronically failed to meet basic obligations. Over time, the mode of intervention has shifted from “command and control” efforts in which the court dictates performance in detail to experimentalist efforts in which the court induces the defendant institution to engage stakeholders, produce a reform plan collaboratively, and open itself to transparent monitoring and performance assessment. The court’s intervention takes a penalty-default form, since it typically involves a threat of an action that no one wants, such as shutting the facility or jailing the administrators but that the defendant can escape by productively engaging the stakeholders. Bracketing assumes that extensive reform can take place incrementally. It thus rejects the suspicion that background inequalities will necessarily determine the outcome of deliberation or at least undermine the possibility of mutually beneficial progress. The Deweyan intuition is that, as long as the interdependence condition is satisfied, the uncertainty condition means that progress cannot be ruled out. On the other hand, the Deweyan perspective has to concede that the brackets will tend to be porous and tentative. Porousness suggests the possibility that background inequalities will constrain deliberation. But there is also the possibility that productive deliberation will spill back over the boundaries initially set for it and affect background social structures. In the Toyota Production System, “production” issues have a tendency to spill over into “design” issues, as team members decide that the most effective way to solve some problem is to change the production specifications. 58 And integrators often encourage their suppliers to question and improve on the specifications for their components.59 Similarly, reform efforts in structural injunction cases often start with a narrow focus – say the racial incidence of the process by which pupils are assigned to schools – and broaden to such matters as curriculum, facilities, and personnel, as the participants re-assess both their goals and methods. 4. Conclusion The social and technological changes that drive new organizational practices undermine traditional forms of democracy built around the nation-state, the public bureaucracy, and tacit professional judgment. They are thus threatening, and they undoubtedly have the potential to exacerbate authoritarian, technocratic, and plutocratic tendencies. But Dewey’s political thought suggests they

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also represent opportunity. Dewey articulated criticisms of traditional democratic institutions before they came under their current pressures. And he called for new forms of organization that have some resemblance to forms that are currently emerging. His ideas are thus likely to be valuable aids to discerning and appraising their democratic potential. NOTES 1. Each of the two best known studies of Dewey’s political thought complains about its institutional vagueness. Robert Westbrook, John Dewey and American Democracy (Ithaca, N.Y.: Cornell University Press, 1991), pp. 315–318; Alan Ryan, John Dewey and the High Tide of American Liberalism (New York: Norton, 1995), pp. 367–369. This programmatic vagueness leads some to disparage Dewey’s approach as sentimental or Utopian. For example, Richard Posner, Law, Pragmatism, and Democracy (Cambridge, Mass.: Harvard University Press, 2003), pp. 30–65. 2. My argument draws heavily on the ideas of Charles Sabel and various collaborators. See Joshua Cohen and Charles Sabel, “Directly-Deliberative Polyarchy,” European Law Journal 3 (1997), pp. 313–342; Michael Dorf and Charles Sabel, “A Constitution of Democratic Experimentalism,” Columbia Law Review 98 (1998), pp. 267–473; Charles Sabel and Jonathan Zeitlin, “Learning from Difference: The New Architecture of Experimentalist Governance in the EU,” European Law Journal 12 (2008), pp. 271–327; and Charles Sabel and William Simon, “Minimalism and Experimentalism in the Administrative State,” Georgetown Law Journal 100 (2011), pp. 53–93. The argument shares much with Christopher K. Ansell, Pragmatist Democracy: Evolutionary Learning as Public Philosophy (New York: Oxford University Press, 2011), which appeared after the essay was in draft but which was useful on many points. 3. William James, Pragmatism (New York: Meridian books, 1955), p. 43. 4. Since the only test of what is useful is the individual’s well-considered belief, there is no guarantee that the consequentialist test will moot any controversy. One debate that James hoped Pragmatism would put to rest – the contest between spiritualist and materialist understandings of nature – is virulently alive today in the disputes between creationists and Darwinists. 5. See Dewey, Human Nature and Conduct (New York: Henry Holt, 1921), pp. 58–75. 6. James, cited in note 3, p. 32. 7. Ibid., p. 28. 8. See Dewey, Liberalism and Social Action (New York: G.P. Putnam’s Sons, 1963). 9. See for example Democracy and Education (New York: Free Press, 1916), pp. 86–88. 10. See Dewey, The Public and Its Problems (New York: Henry Holt, 1927), pp. 75–109, 143–184. 11. Ibid., pp. 205–208. 12. Katherine Camp Mayhew and Anna Camp Edwards, The Dewey School (Piscataway, N.J.: Atheron Press, 1936), p. 94. 13. Dewey, The Child and the Curriculum (Chicago: University of Chicago Press, 1902), p. 29. 14. Dewey, The Quest for Certainty (New York: G.P. Putnam’s Sons, 1960), p. 216.

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15. Dewey, Public and Its Problems, p. 131. 16. Dewey, The Quest for Certainty, p. 87. 17. Ibid., pp. 74–107, 254–286. 18. Dewey, Public and Its Problems, pp. 202–203. 19. See Dewey, “Logical Method and the Law,” Cornell Law Quarterly 10 (1924), pp. 17–27. 20. Dewey, The Public and Its Problems, p. 215. 21. Ibid., at 215. 22. Ibid., at 218. 23. Ibid., at 209. 24. Ibid., at 113. 25. Ibid., at 217. 26. “The opinion which is fated to be ultimately agreed to by all who investigate, is what we mean by the truth...” Charles Saunders Peirce, “How To Make Our Ideas Clear,” in Philosophical Writings of Charles Saunders Peirce, ed. Justus Buchler (New York: Dover, 1955), p. 28. Dewey did not have Peirce’s vision in the steady convergence of scientific opinions, but he too saw agreement as the touchstone of scientific validity. 27. Dewey, The Public and Its Problems, pp. 207–208. 28. See, for example, Friedrich Hayek, Individualism and the Economic Order (Chicago: University of Chicago Press, 1948). 29. For example, Dennis Thompson and Amy Gutmann, Democracy and Disagreement (Cambridge, Mass.: Harvard University Press, 1996); Jürgen Habermas, Between Fact and Law, trans. William Rehg (Cambridge, Mass.: MIT Press, 1998); James Fishkin, When the People Speak: Deliberative Democracy and Public Consultation (New York: Oxford University Press, 2009). 30. Habermas, cited in note 27, at 186–193. Habermas recognizes the need for “‘democratization’ of the administration” for a category of implementation decisions that require “the weighing of collective goods, the choice between competing goals, and the normative evaluation of individual cases.” Idem. at 440. But he seems to regard this category as marginal. Modern Deweyans see it as central and expanding. 31. For example, The Consensus Building Handbook, ed. Lawrence Susskind, Sarah McKearnan, and Jennifer Thompson-Larmer (Thousand Oaks, Cal.: Sage, 1999). 32. See the works cited in note 2. 33. Dewey, The Public and Its Problems, p. 207. 34. Ibid, p. 168. 35. James Womack, Daniel Jones, and Daniel Roos, The Machine that Changed the World: The Story of Lean Production (New York: Harper, 1991). For discussion of the potential relevance of lean production to law, with further references to the industrial engineering literature, see William H. Simon, “Toyota Jurisprudence: Legal Theory and Rolling Rule Regimes” in Law and New Governance in the EU and US, ed. Grainne de Burca and Joanne Scott (Oxford, U.K.: Hart, 2006) pp. 37–64; Charles Sabel drew attention to the potential political significance of lean production in “Learning by Monitoring: The Institutions of Economic Development,” in Handbook of Economic Sociology, ed. Neil Smelser and Richard Swedberg (Princeton, N.J.: Princeton University Press, 1995). 36. See for example Joseph Rees, Hostages to Each Other: The Transformation of Nuclear Safety After Three-Mile Island (Princeton, N.J.: Princeton University Press, 1994); Council of Medicine, Committee on the Review of the Use of Scientific Criteria and Performance Standards for Safe Food, Scientific Criteria to Ensure Safe Food

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(Washington, D.C.: National Academies Press, 2003). 37. Kathleen Noonan, Charles Sabel, and William Simon, “Legal Accountability in the Service-Based Welfare System: Lessons from Child Welfare Reform,” Law & Social Inquiry 34 (2009), pp. 523–568, 542. 38. Dewey, The Public and Its Problems, p. 215. 39. Dewey, The Quest for Certainty, pp. 259, 241 (emphasis omitted). 40. Productivity Press Development Team, Standard Work for the Shopfloor (2002), p. 11 (emphasis omitted). 41. John Dedrick and Kenneth Kraemer, “The Impact of IT on Firm and Industry Structure: The Personal Computer Industry,” California Management Review 47 (Spring 2005), pp. 122–142. 42. Brendan Reilly et al., “Impact of a Clinical Decision Rule on Hospital Triage of Patients With Suspected Acute Cardiac Ischemia in the Emergency Department,” Journal of the American Medical Association 288 (2002): 342–350. 43. Marie Clay, An Observation Survey of Early Literacy Achievement, 2nd edn (Portsmouth, N.H.: Heinemann, 2005), p. 12. 44. Annie E. Casey Foundation Juvenile Detention Alternatives Initiative, Juvenile Detention Risk Assessment: A Practice Guide to Juvenile Detention Reform (2006), available at www.jdaihelpdesk.com. 45. Since the standardization regimes described here bear an unflattering resemblance to two types of regulation widely held in low esteem, we note some distinctions. First, there is New Public Management, a literature that prescribes performance measures and competitive contracting for public services. It shares with the Deweyan perspective an aspiration to combine operational decentralization with accountability, but it contemplates hierarchical rather than democratic formulation of standards, and it has a more punitive and less diagnostic attitude toward standards enforcement. See Simon Head, “The Grim Threat to British Universities,” New York Review of Books (13 January 2011). Second, there are the regimes of social control in Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Pantheon, 1977). These regimes share with current “evidence-based” social service practice an inclination to make observation as precise, pervasive, and articulate as possible. However, practice in the old regimes seems to have been more rigid and static (though their greater flexibility and adaptability might have led Foucault to view the new practices as even more insidious), as well as less democratically accountable. Aside from differences in the regimes themselves, there is a clear difference in the way Dewey and Foucault assess social practice. Foucault’s account is animated by a repressed and inarticulate moralism, while Dewey is open and experimentalist about his normative premises. 46. Mary Graham, Democracy by Disclosure: The Rise Technopopulism (Washington, D.C.: Brookings Institution, 2002). 47. Caroline Fung et al., “Systematic Review: The Evidence that Publishing Patient Care Performance Data Improves Quality of Care,” Annals of Internal Medicine 148 (2008), pp. 111–123; Kenneth Thomas, The CRA Handbook (New York: McGrawHill, 1998). 48. See Mark Lemley, “Intellectual Property Rights and Standard-Setting Organizations,” California Law Review 90 (2002), pp. 1889–1980. 49. See Philip Senge, The Fifth Discipline: The Art and Science of the Learning Organization (New York: Doubleday, 1994); Lawrence Susskind, “An Alternative to Robert’s Rules of Order for Groups, Organizations, and Ad Hoc Assemblies that Want to Operate by Consensus,” in The Consensus-Building Handbook, pp. 3–60.

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50. Experimental psychology provides support for some of Dewey’s intuitions, though it also emphasizes qualifications. See Tali Mendelberg, “The Deliberative Citizen,” Political Decision Making, Deliberation, and Participation 6 (2002), pp. 151– 193. Note that many discussions of the limits of deliberation do not involve the circumstances Dewey had in mind – people deliberating about practical solutions to problems in which each has a personal stake and there are potential gains from collaboration. Pathologies observed in some deliberative processes, such as group polarization, rational apathy, and information cascades, seem less likely in the Deweyan context where people have strong practical incentives to inform themselves and try to enlist the collaboration of those with whom they disagree. 51. Roger Fisher and William Ury, Getting to Yes: Negotiating Agreement Without Giving In (Boston: Houghton Mifflin, 1981). 52. This Deweyan point is reflected in the contemporary negotiation practice called “put-up-or-shut-up.” A negotiator who asserts a fact can be asked to assume the risk the assertion is incorrect. For example, the seller of a business who asserts that it has a higher earning potential than the buyer believes should be willing to accept an “earnout” that conditions part of the purchase price on profits after the sale. See William Klein, “The Put-Up-Or-Shut-Up Strategy in Business Negotiations,” UC Davis Law Review 17 (1983), pp. 341–358. 53. John Paul MacDuffie, “The Road to Root Cause: Problem-Solving at Three Auto-Assembly Plants,” Management Science 43 (1997), pp. 479–502, 495. 54. Michael Froomkin, “[email protected]: Toward a Critical Theory of Cyberspace,” 116 Harvard Law Review 116 (2003), pp. 749–873, 794. 55. I don’t mean to suggest that the background institutions that structure deliberation are normally hierarchical in the senses of these two examples. They need not be, and to the extent that they are, that simply raises the question of what disciplines hierarchy. I am not offering a full-blown theory of democratic institutions here. The point is simply that Deweyan deliberation can be valuable even where it cannot do all the work. 56. E.g., Mehlenberg at 160–161. 57. See Charles Sabel and William Simon, “Destabilization Rights: How Public Law Litigation Succeeds,” Harvard Law Review 100 (2004), pp. 1015–1101. The description of the Habitat Conservation Plan program in the next paragraph as an example of a penalty default ignores practical disappointments that seem to have arisen from the failure by the Department of the Interior to effectively implement the penalty default idea. Alex Camacho, “Can Regulation Evolve? Lessons from a Study of Maladaptive Management,” UCLA Law Review 55 (2007), pp. 293–358. The description remains a good illustration of the potential of the idea even if it is taken as hypothetical. 58. MacDuffie, pp. 495. 59. See Charles Sabel and Jonathan Zeitlin, “Neither Modularity Nor Relational Contracting: Interfirm Collaboration in the New Economy,” Enterprise and Society 5 (2004), pp. 388–403.

William H. Simon Columbia Law School 435 West 116th St. New York, New York 10027 United States

Contemporary Pragmatism Vol. 9, No. 2 (December 2012), 35–55

Editions Rodopi ©2012

Dewey, Democracy, and Democratic Experimentalism Charles Sabel

Dewey’s approach to the problem of organizing reform of democracy focused on rethinking the ideal of democratic participation, or, backing up a step, the conditions of communication eventually shaping it. He left the design of institutions to advance joint problem solving and individual development to the outcome of this process. To the extent that he had concrete institutional plans they vacillated in focus between the society as a whole and the immediate local community. Democratic experimentalism looks to connect these levels to correct the defects of an exclusive focus on either.

1. Introduction Dewey’s enduring achievement was to present a compelling account of the mutual constitution of the individual and society, struggling together to extend the limits of their knowledge in response to surprising failures of what they thought they already knew, and to establish an ideal of democracy as that form of self-government which, under ever new circumstances, affords the greatest possible scope to the social intelligence of problem solving and the flourishing of individual character as its condition and product. Dewey shares with Marx the idea of the sociability of production and the deformation of the self through its denial, with Rawls the idea of recognition of the full, individual humanity of fellow citizens as the first and most fundamental constraint on political order. Yet he had a sense of the moral and political malleability of the technical world – a recognition that the organization of production conditions politics yet is also profoundly conditioned by it – and a congenital understanding of the individual in democracy alien to the former. He had an intellectually productive absorption in the lived interaction between individual and society alien to the latter. In an uncertain world, where innovations in production and changes in individual life courses and gender roles upend each other, settled forms of assuring social solidarity fail, and traditional representative democracy seems more an institutional casualty of these changes than an instrument for an effective public response to them, committed democrats will want to learn from Dewey.

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Yet when it came to questions of institutional design – of specifying how various domains of activity might be organized to advance joint problem solving and individual development – Dewey had, to the evident irritation of some of his most ardent admirers and closest readers,1 and apart from limited and ultimately vexed observations about schooling, next to nothing to say. His reticence in these matters is a puzzling double default. First there is the very general (but in debate infrequently remarked) absence in Dewey’s work of discussion of what might be called pragmatist institutions. No one understood better than Dewey that habit, or experience accrued into unnoticed assumptions, enabled action by allowing the concentration of attention on troubling violations of (habitual) expectations; no one understood better than he that habit could also harden into routine, making unnoticed assumptions inaccessible to revision and trapping us in experiences only possible if we do not attempt to scrutinize them fully in the event. Dewey stressed as well the mutual dependence of individuals and institutions, and the way the stunting of the one impoverished the other. Institutions and individuals thus had to change together or not at all. Given all this it is puzzling that he did not pose the question of how to design institutions that reduce the chance of organizational habits congealing into limiting routines, or that can detect and dis-entrench routines that have become obstructive. Second, there is the more specific and more frequently noted absence of discussion of the design of democracy itself, of institutions of public choice serving the ideal of democracy as enabling individual flourishing, and adapted to the circumstances of the day. Dewey was nothing if not a fallibilist. He held that inquiry in its exemplary form – in the laboratory – was a process of continuous self-correction, of learning from mistakes. The kind of joint searching or social inquiry he urged outside the laboratory would be, if anything, more prone to error and more in need of correction. More generally he insisted that ends and means were mutually transformative – as in art, where the painting becomes the picture – or, put another way, that theories and first principles were inevitably redefined in the process of applying them. What he held in general he held to be particularly true of democracy; one of his recurrent arguments was that the means that serve democracy, and its proximate ends, must be rethought as circumstances change. Horseback empiricism sufficed to show that in this he was right. The mismatch between the 19th century institutions of American democracy, informed by if not premised on a citizenry of small holders, and the mass-production, mass-consumption society of large firms and associations of the US in the 1920s was palpable. The rise of fascism left no doubt that democracies could make or abide horrific choices. The bureaucratic, centralizing tendencies of the New Deal troubled Dewey, suggesting that he distinguished between decisions authorized by democracy and organizational decisions that served his democratic ideal. In the background, but surely not out of mind, was the continuing public controversy over judicial supremacy and the people’s relation to the constitution that generally shaped the Progressive Era. 2 Yet, though understanding and defense of democracy and the question of its design

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seemed indissolubly linked in fact and by the lights of his own ideas, Dewey had as little to say about the mechanisms for avoiding and correcting error in the institutions of democracy as in the design of institutions generally. Democratic experimentalism addresses the problem of the design of pragmatist institutions and cognate problems of making and revising democratic decisions. The aim is not of course to try to say what Dewey might have or should have said, and still less to chide him for not saying it. Rather the goal is to make conceptually more cognizable and empirically more plausible a form of democracy, situated as today’s must be in the uncertain flux of experience, sharing Dewey’s aspiration of linking adaptive social learning and the greatest possible development of individuality, and assuming (from a combination of conviction and the assessment of experience) that these goals cannot be achieved by harnessing market mechanisms to the largest of public purposes.3 The design of pragmatist institutions is the theme of Bill Simon’s contribution to this symposium. He shows that private firms and public-sector institutions have, independently, hit upon mechanisms by which small breakdowns in operations trigger a wide ranging but not unfeasibly open-ended search for the deep or root causes of the disruption, and when warranted, a revision of the procedures that led to it, or even the goals from which the procedures were derived. A leading private-sector example is the Toyota production system, where the removal of buffer inventories (the shift to just-in-time production) means that breakdowns must be fixed, and their causes eliminated as they occur – so that if production is to be continuous, so too must be improvement. In many regulatory settings the triggering mechanism is a system for registering, analyzing and eliminating the causes of near misses – accidents (in air traffic control or nuclear power generation) that only by chance did not occur, and therefore, properly understood, illuminate some of the otherwise unobservable conditions that can lead to catastrophe. In the provision of public services, such as child welfare, the triggering mechanism can be a searching review of randomly selected cases, with the aim of determining whether the routines for diagnosing and responding to the problems of especially distressed families were followed to good effect, and if not whether the cause of the problem was a local defect in decision making or a defect in the routines or goals of the agency. In all these cases rule following comes to include the obligation to consider whether the current rule should be revised, and if so how. To act accountably under these novel institutional conditions means either to act in conformity to a rule, or to provide a compelling account (as gauged by the experience of peers in similar situations) of why it is reasonable to deviate from the prescribed practice locally and perhaps more generally. Accountability is forward as well as backward looking. This note extends the discussion of pragmatist institutions to the organization of some key aspects of democracy. A central theme is that, as with pragmatist institutions generally, innovations that work under current conditions enlarge possibilities for participation and experimentation, and so are compatible

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with and may well advance the chances of realizing some variant of Dewey’s democratic ideal. Many, perhaps most of these innovations are permissible under current understandings of the laws of constitutional democracies and the administrative state. In many cases, they develop without disturbing the usual business of state, and, at least partly for that reason, remain largely invisible to the larger public. But the assumption – and incipiently the experience – is that as more existing and new political actors are drawn to take advantage of the opportunities afforded by experimentalist innovations debate will spring up about their legitimacy and permissible scope, creating the potential – but only that – for a public re-elaboration of democratic ideals and the creation of more inclusive forms of participation. Dewey’s own approach to the problem of organizing reform of democracy was, on the contrary, initially focused on rethinking the ideal of democratic participation, or, backing up a further step, the conditions of communication eventually shaping it. He was long inclined to leave the design of institutions to the outcome of this process. To the extent that he had concrete institutional plans they vacillated in focus between the society as a whole and the immediate local community. Democratic experimentalism looks to connect these levels to correct the defects of an exclusive focus on either. Dewey’s ideas will serve as a foil for those presented here, and it is to these that we turn next. 2. Dewey’s Two Ideas of Democracy Dewey had two ideas of how democracy might come into its own under the conditions of his day. The first, set out in The Public and Its Problems, was very spare indeed, and linked the emergence of democracy to the emergence of any effective distinction between public and private action. Private transactions, paradigmatically in the form of bi-lateral contracts, often had consequences for others not party to the agreement: externalities, as we would say. When those subject to the externalities become aware that they were jointly constrained by decisions over which they as yet had no control, they form a public, and in coming into being that public authorizes an official of the state to regulate the transactions that affect it. Democracy is the form of government that most encourages and best responds to the formation of publics, and in so doing allows the society of transactors, naturally interdependent and gregarious, to reflect deliberately on its spontaneous exchanges and, channeling these in the interest of all, to become a self-aware community. The problems of the public in the 1920s, had to do, as noted above, with the rise of the large firms and organizations, and their disruptive effect on the local communities and forms of communication that had allowed American democracy, in Dewey’s view, to function naively, without the need for substantial self-reflection and revision, since the founding. The remedy was the spread of the culture of inquiry from the laboratory to the larger society, abetted by and encouraging the creation of new forms of communication, less tainted by commercialism and sensationalism than

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the alliance of mass media and advertisement dominating the 1920s, and new forms of art as the incorruptible means of conveying experience. If successful, this remedy would transform the national, highly interconnected but un-selfreflective great society of the 1920s into a new, morally self-aware, “great” community, of necessity democratic because democracy “is the idea of community life itself.”4 But when it came to proposing reforms Dewey demurred. It was pointless to “set forth counsels as to advisable improvements in the political forms of democracy” until the problem of communication and improved collective self understanding had been solved – and then it would be superfluous: The prime difficulty…is that of discovering the means by which a scattered, mobile and manifold public may so recognize itself as to define and express its interests. This discovery is necessarily precedent to any fundamental change in the [political] machinery.5 Making reform the outcome of an (almost self-effectuating) process of mutual self-discovery resonates with the evolutionary or “naturalistic” strand of Dewey’s thought: the exaltation of the idea of the mutual determination of ends of and means whereby the criteria of selection – here an idea of democracy – and the units selected – here the institutions of democracy corresponding to that idea, and the role of citizens in them – co-evolve, so that the public and reforms it demands can only emerge together. Indeed Dewey described universal suffrage, majority rule and the other characteristic institutions of representative democracy as having “evolved in the direction in which the current was moving, each wave of which involved at the time of its impulsion a minimum of departure from antecedent custom and law. The devices served a purpose; but the purpose was rather that of meeting existing needs which had become too intense to be ignored, than that of forwarding the democratic idea.”6 But to the extent that democracy, or any other form of social organization, is the product of an evolutionary cunning of reason, the possibility of human agency is of course undercut and the idea of a mutually enriching exchange between individual and society gives way to the blind jostling and adjustment of organism and environment. With regard to the development of democracy such evolutionary claims, quite apart from their paradoxical perversity, are bad history, of a sort that Dewey himself in other settings derided. The debates about the founding of the French and American republics, or about the extension of the suffrage in Great Britain and other Western European countries in the 19th century, all focused on institutional arrangements as the means of linking certain ideals of democracy and certain attributes of the people to produce in time a virtuous circle, with the institutions encouraging development of the people’s virtues, limiting the play of their vices, and becoming themselves stronger in turn. These debates did not take place on a tabula rasa; the grand designs they produced were realized very imperfectly because of faults in their

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assumptions and ambiguities in their goals. But they were profoundly consequential in shaping developments and especially the setting within which the people would thenceforth debate their constitution. They are an analogue in public life to those moments Dewey incessantly invokes in which individuals, struggling to conjecture novel and purposeful meaning, both make use of habit and transform it even as they add definition to their individual characters. Given the entirety of his work Dewey could well have invoked this analogy, and investigated the situation of democracy in the 1920s from the vantage points it suggests. He didn’t. But the fact that he could have allows or invites us to consider the limits of The Public and Its Problems more as the circumstantial evasion of some intellectual challenges rather than the expression of a fundamental flaw in Dewey’s idea of democracy.7 Dewey came back in his writings to the theme of democratic reform a decade later with a related but distinct approach that was more fragmentary but more vivid. The local community, the victim of industrialization in The Public and Its Problems, was now to be the saving remnant or regenerative kernel. Dewey embraced Jefferson’s long-standing concern for a roughly egalitarian distribution of property as the material basis of a republic, and his late idea of subdividing Virginia’s counties into small ward republics: deliberative assemblies with certain administrative powers on the model of the New England town meeting, with its reliance on the direct participation of citizens and rejection of representation.8 To understand Dewey’s affinity for this kind of communitarian localism – “the local is the ultimate universal, as near an absolute as exists,” he wrote in The Public and Its Problems9 – it is helpful to see it in relation to the continuing influence on his thought and political formation of the republican populism and the associated movement for producer cooperatives of his youth, and especially his admiration for Henry George, one of the most radical defenders of the small holders and their local communities. George’s main reform proposal was a tax on the increase in land rents. What apparently drew Dewey to the idea was George’s account of the profoundly social origins of the increase in land value. George saw this increase as a process by which individually rational, even calculating decisions led to an ever more complex division of labor, and with it closer cooperation and the emergence of community. In George’s parable the arbitrary choice of the first plains settler for this acre rather than the adjacent one drew a second and a third pioneer in search of companionship and neighborly help; this growing agglomeration drew artisans and traders; this center of commerce and trade finally becomes a city and seat of learning; ideas accumulate and clash. Here, in the pages of George’s Progress and Poverty, Dewey perhaps found an illustration more vital than anything else in his ken of the conjoint growth of commerce and community, embedding politics in the culture of cooperation and making it therefore democratic. 10 This attraction to the local, and the desire to re-found democracy on it, was of a piece with Dewey’s bedrock conviction that the abstract and the concrete, means and end, must be

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joined to be put to useful purpose. Local action, growing out of immediate experience and generating immediate local effects and corrective responses, seemed a necessary condition to sustain this connection. Had Dewey been able to look ahead in time he would no doubt have been surprised by the bright – but not unclouded – future of the ward republics that flickered into his imagination through the fusion of Jefferson’s ideas and George’s. In the 1970s and 80s, mutually reinforcing changes in technology and markets began to undermine the stability required for the long-term investments that were the foundation of the mass-production firms asserting their dominance of the national and world economies in Dewey’s day. One of the forms of economic organization, along with the Toyota production system, that was robustly adaptive enough to thrive amidst the ensuring volatility was the cluster or industrial district: geographically compact agglomerations of small and medium sized firms, competing and cooperating with one another. Each firm in an industrial district specializes in a particular phase of production or in a production process, and groups of firms collaborate in rapidly shifting constellations to produce finished goods. Dealings in these industrial districts are face to face; personal and professional reputations shade each other. Because firms are generally small, and the transition from craft worker to small entrepreneur to industrialist (and back) is fluid and open, the distribution of property and opportunity is roughly egalitarian. Because firms are too small to provide many services such as vocational training or sophisticated quality control they need by themselves, they must cooperate to organize joint provision. The economic shades into the political. The actors in industrial districts often understand their own history in ways that recall George’s parable of the passage from neighborly contiguity to economically dynamic community. In the 1980s and 90s, there was an explosion of writing tracing the history of these districts, their eclipse by mass production firms in Dewey’s day, their later resurgence and diffusion to new areas – and explicitly celebrating industrial districts as a vindication of the feasibility under modern conditions of the ideal of the yeoman republic. 11 But if the success of the industrial districts lends substance and plausibility to Dewey’s later democratic intuitions, their current vicissitudes call attention to a salient limit in his conceptions and the broader tradition of thought from which it springs. The same inwardness that facilitates informal, personal dealings and the accumulation of tacit knowledge within industrial districts – everyone knows, judges the capability and reliability, and learns from everyone else in the community – makes it harder to collaborate closely with and learn from outsiders. The districts are highly flexible within their traditional domains (ceramic tiles, packaging machines, hydraulic systems and so on); but as some multinational firms turned themselves in effect into federations of clusters, passing knowledge across domains to create innovative products and processes, and leading firms within districts “broke” with local solidarity to do the same, industrial districts as an organizational form have come under strain. “Locality” is still a necessary condition for responsiveness; but it is not sufficient – the

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ability to learn across localities is necessary too. To the extent that “natural” community of the republican tradition and Dewey’s Jeffersonian moment encourages the first at the price of discouraging the second it seems more a limit than a foundation. The fundamental problem today seems not how to preserve or foster creation of natural communities, but how to encourage sufficient explication of tacit knowledge to make exchange and learning among “strangers” possible without undermining the conditions that foster informal dealings and reciprocity.12 Dewey, to be sure, could not look ahead to see things from this vantage point. But it was obvious in Dewey’s day, and no doubt to Dewey, that no alternative to the economic and political centralization that he saw as ruinous for community and democracy would be credible unless it indicated how diverse publics or local communities could be federated to coordinate their regular interactions, resolve and learn from their differences and act in concert when necessary. Awareness of the problem flits across a very few of his pages; 13 but there is no substantial treatment of it, not even in the discussion of the county ward republics, which could well be the base of a renascent democracy but never the entirety of one. Besides drawing attention to the importance today of federated learning across community boundaries the recent realization in the industrial districts of the limits of tacit knowledge and the kinds of craft and professional experience from which it grows marks a profound change in the context of problem solving, private and public, from Dewey’s day to ours. The problem for the New Deal, well captured in The Public and Its Problems, was how to regulate the consequences of an increasingly interdependent and national economy. The solution typically was creation of an expert administrative agency that consulted in turn with a trade association representing the primary actors in a given domain: Congress, recognizing the limits of knowledge of a particular area delegated the relevant rule-making authority to the agency; the agency, better informed than Congress, realized the limits of its competence and conferred in the actual drawing of rules with the representatives of those with immediate – local – experience of the matter at hand. The presumption all along was that authorized decision makers were in varying degrees unaware of crucial aspects of context, but that there were some – primary – actors who did know what they were doing, and could be drawn into a discussion of how to regulate it in the public interest. The problem, in other words, was official ignorance; the remedy was an institutional arrangement allowing the legislature and its delegates to poll the informed parties. This solution may well have seemed too centralizing to Dewey – more likely to entangle local actors in national projects than to reshape national policies from below – or too dependent on an upward cascade of representation rather than anything resembling direct democracy; but it was, within the broad meaning of his austere discussion of the menace of externalities, a legitimate (and for many decades passably workable) solution to the public’s problems.14

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Today the problem has shifted from ignorance to uncertainty. The impediment to decision making is not the inability of the official outsiders to know what the insider actors are about. Rather it is the inability of all – insiders and outsiders alike – to confidently identify the risks and opportunities they are likely to face. Practically speaking the increase in volatility of technologies and markets means that yesterday’s solutions are a poor guide to tomorrow’s problems and the best response to current problems may arise in a domain until now considered irrelevant. Problem solving therefore goes hand in hand with the search for new potential collaborators: the opening of lead firms in industrial districts to new and unfamiliar partners is a case in point. The public response to pervasive uncertainty therefore is not more extensive polling of insiders but the organization of joint inquiry into potential risks and how to mitigate them. Recall that this is precisely what pragmatist institutions in the public and private sectors do: on the assumption that no actor has a sufficiently panoramic view of a problem area to predict where breakdown will occur, or where opportunities for improvement exist, these institutions use naturally occurring or deliberately induced disruptions in operations to trigger searches for both. A further effect of the rise in uncertainty has been to undermine the transfer based welfare state emerging in the US in Dewey’s day. In a relatively stable world it is possible to foresee periodic disruptions, such as seasonal or cyclical downturns in labor markets, and insure against them. But uncertainty gives rise to non-actuarial risk: harms whose incidence is so unpredictable that it is impossible for those at risk to create an insurance pool sufficient to indemnify those who incur losses. The increase in structural unemployment illustrates the problem. When radical shifts in product design or production technology permanently devalue whole trades and skill categories (a shift to computer-controlled manufacturing that displaces assembly-line workers and machinists), unemployment insurance, by itself, is not a bridge to another job in the same line of work, or indeed to any job at all. The effective response to these conditions is to help individuals and families to self-insure against risks by enabling them to acquire the capacities they need to surmount the disruptions they face: the general skills that ensure employability in a wide and changing range of jobs. Social solidarity depends less centrally on the provision of various forms of social insurance, and more on the provision of capacitating or enabling services that foster the acquisition of the skills that underpin self-reliance.15 In prospect, at least a persistent increase in uncertainty favors the emergence of a world congenial to Dewey – a world in which mutual learning and joint problem solving give rise to a democratic community. For one thing, Dewey’s emphasis on schooling as an opportunity in each generation to break the grip of social habit and enable each individual to acquire the skills she needs to participate fully in democracy and productive activity looks like a prescient anticipation of the emergent capacitating or service-based welfare state (though it must be said that Dewey, inattentive also in this domain to questions of institutional design, ignored the problem of helping students reform the diverse

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and sometimes obstructive habits they brought to the classroom, and so had little to say on the fundamental question of the role of the teacher and curriculum in supporting those who did not learn “naturally.”)16 More generally, uncertainty encourages the kind of inquiry that Dewey saw as the highest expression of our creativity and sociability. The more uncertain the world – the harder it is to know what it can become – the riskier and potentially more costly it is to rely on familiar strategies (and associated conceptions of self-interest) resting on complex assumptions about the way the world must be; the more prudent it becomes to the contrary to entertain the possibility of elaborating next steps with others similarly at sea, on condition that they share what they learn and bear a share of the costs of exploration. As the first, provisional steps suggest others, ideas of what is possible individually and jointly begin to change; changing ideas of possibilities prompt reconsideration of common interests and how to pursue them, and with whom. Increased uncertainty does not erase all old enmities and correct every imbalance in the distribution of power. But it does increase the disposition of actors to look beyond the familiar circle of friends and allies for new partners and new forms of collaboration. At the level of polities as a whole, a long-term effect of the shift from Dewey’s day to ours in the focal problem of governance from official ignorance to organizing joint inquiry in response to uncertainty is a change in the form of lawmaking and its implementation that fosters the establishment of pragmatist institutions in regulation and the provision of public services. This change gives an increasingly experimentalist cast to the traditional administrative state; it may create a passage from representative democracy to an experimentalist one closer to Dewey’s ideals and – because it makes general commitments the basis for local learning and local learning the basis for re-evaluation of the commitments – better fitted to the conditions of our times than either the encompassing great community or the isolated ward republics he imagined. 3. Experimentalist Lawmaking and Administration The shift towards experimentalist lawmaking requires complementary changes in the way laws are constructed and the way they are administered or applied to various contexts: the law has to encourage adaption and revision when applied in context; the contextual adaption has to make possible the detection of local error, permit learning across contexts, and prompt reconsideration of the original legislation when, on reflection, necessary. Meeting both sets of requirements together yields a characteristic sequence of experimentalist lawmaking and administration. It begins with agreement at the highest-level jurisdiction (for example, the federal level in the US, the Union level in the European Union) on broad framework goals. Lower level actors (the states in the US, the member states in the EU, or administrative agencies acting through their local units or in collaboration with state or member state administrations) are given discretion to advance the general goals in their

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own way, but on condition that they elaborate either by themselves, and more typically with others, standards that specify the goals and set metrics for gauging progress towards them. Lower level experience is then periodically compared against the backdrop of these standards and metrics, and these comparisons of implementation experience call attention to the need for either changes in particular lower-level administrations or revisions of the standards and metrics, or the framework law or some combination of all of them. Following this sequence the highest-level jurisdiction or center need not pretend to a panoramic view of the situation that it cannot have, and lower-level actors need not rely exclusively on their immediate but necessarily limited experience. The limitations of each vantage point is corrected by the view from the other, breaking down the familiar distinction between the principal who conceives plans and the agent who executes them, and the equally familiar idea of law as “made” by a sovereign legislature and executed by administrative bureaucracies bound to be as faithful as possible to legislative intent. Here too accountability is forward as well as backward looking. With this enlargement in the scope of accountability comes an enlargement in the possibilities of active participation in law making and an increase in its transparency. What is expected of the lower-level officials, at all levels, and of private actors to whom regulation is addressed is not conformity to a rule, but active investigation of superior solutions, and criticism of the rule when the results of that investigation call for it. Changes in service provision work in the same direction. The active search for alternatives, and reports on their utility, make it possible for the public, legislators and courts to know not just what an instance of the administration has decided, but whether its decision is as fully informed and deliberative as the experience of peer entities, facing similar problems, suggests it could be. Or put another way, the obligation to formulate standards, report experience under them and review their utility means that when government makes itself transparent, what becomes visible is likely to be usefully informative. Despite the manifest differences between the US and the EU – the first is the prototype of the modern federal state, with a demos that proclaimed itself a polity by adopting a constitution; the EU is, formally, a peculiar entity, with neither a demos nor a true constitution, and combining features of a confederation of democracies and an intergovernmental organization acting across and from beyond national borders on the basis of treaties – both are enacting laws and creating administrative arrangements with markedly experimentalist features. Developments are perhaps more pronounced in the EU, in part because construction of the regulatory regime began much later than in the US, and hence the need to address uncertainty was more salient, and in part because the “polyarchic” nature of the EU – the absence of a single sovereign – often makes it opportune in lawmaking to specify common, core requirements, but to give express autonomy to member states to achieve these goals by the means most compatible with their respective legal and institutional traditions. 17

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An example of developments in the EU is the recent regulation on the Registration, Evaluation, Authorization and Restriction of Chemical Substances (REACH).18 The regulation establishes a framework for ensuring that all chemicals in commerce or incorporated into products in the EU are used in ways consistent with high levels of protection for human health and the environment, or banned from use; it creates the European Chemicals Agency (ECHA) to administer application of its provisions. The comprehensive scope of REACH addresses a prior regulatory failure. Existing requirements for the commercialization of new chemicals dulled incentives for innovation by often making it cheaper for firms to rely on already approved products, rather than bear the costs of registering new ones. REACH removes this disincentive by requiring that all chemicals produced or imported into the EU in amounts of one ton or more be registered with the ECHA, old (during a transition period) or new (as they come to market). Carcinogens, persistently toxic, bio-accumulative chemicals and other “substances of very high concern,” which can have irreversible effects on human health or the environment, are subject to additional scrutiny and only authorized for specific uses if it can demonstrated that their benefits outweigh their risks. The use of chemicals that cannot meet this test is restricted. The burden to produce information required for registration or authorization is clearly on the applicant firm – ”no information, no market” is the lapidary gist of the regulation – and firms seeking approval of the same or related chemicals are strongly encouraged to form consortia to promote mutual monitoring and to reduce the need for testing of chemicals on animals. The Risk Assessment and Socio-Economic Analysis Committees of the ECHA evaluate applications for authorization; the Commission of the EU (the Union’s executive body) must accept these recommendations or offer a reasoned justification when departing from them. The member states are represented on the ECHA management board and its committees. More fundamentally, in recognition of the background uncertainties in all ECHA decisions, member states are given extensive rights to challenge Agency judgments if their competent authority – typically a national environmental ministry or agency – finds evidence for doing so. The upshot is that “central” decision-making is provisional, and subject to correction on the basis of local experience. A recent review of the regulation’s operation finds: At every turn, whether it is in relation to which substances are to be evaluated [subject to heightened scrutiny as a condition of registration – cfs], which are to require authorization or restriction, or in relation to labeling requirement, Member States ... are empowered, on the basis of clearly defined procedures, to seek to use their local knowledge to persuade the European Union as a whole of the need to revise applicable norms, in order to ensure effective fulfillment of the Regulation’s framework goals.19 Similar experimentalist arrangements are found in other areas of environmental protection (water quality, for instance), as well as regulation of telecommuni-

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cations, energy, drug authorization, occupational health and safety, food, maritime, and rail safety, data privacy, employment promotion, social inclusion, and pension reform, and more recently in health care, anti-discrimination policy, and competition policy.20 The emergent administrative law of the EU encourages extensive deliberation in connection with the fluid implementation processes on which these institutions depend by obligating Union institutions either to abide by the recommendations of the scientific committees they consult or provide reasons of commensurate sophistication to those they set aside.21 The conditions for this kind of administrative fluidity, and the forwardlooking forms of accountability on which it depends, seem at first glance much less propitious in the US. Our constitutional tradition, influenced by Locke, is deeply suspicious of any delegation of legislative authority, including to administrative bodies; our administrative law tradition, in part for this reason, exults in imposing backward looking accountability, and more generally defers to the judgment of agencies when they are seen as resolving ambiguities or filling gaps in legislative mandates but does not hesitate to set aside agency decisions when these are judged to be in violation of clear legislative intent. But as often the formal obstacles overstate the barriers to innovation. Congress can and does enact legislation creating experimentalist regimes with many of the features of REACH and other such measures in the EU. Perhaps more important, the increasingly extensive cooperation between the states and the federal government in the implementation of laws may be encouraging the diffusion of experimentalism even where Congress does not expressly intend this. An example of the creation of an experimental regime by express Congressional action is the Food Safety Modernization Act of 2011 (FSMA).22 The FMSA requires food processing facilities to be licensed by the Food and Drug Administration (FDA). To secure a license, facilities must submit a Hazard Analysis and Risk-Based Prevention Control plan adequately identifying the critical points in the production process where pathogens might contaminate food stuffs, specifying measures to mitigate the risks and the tests to verify the effectiveness of the measures, and providing test results demonstrating that the risks are indeed under control.23 Under FSMA, the “owner, operators, or manager shall monitor the effectiveness of [plan] controls,” and the FDA periodically inspects licensed facilities, with the frequency of inspection increasing as the facility’s performance, compared to its peers, decreases. Where facility monitoring detects failures in risk management, FSMA requires corrective action to eliminate the cause. The facility must “reanalyze” its plan every three years – sooner if changes could create a “new hazard or a significant risk in a previously identified hazard” –to verify it is “still relevant to the raw materials, conditions, and processes in the facility, and new and emerging threats.”24 In addition, FMSA mandates that the FDA, in collaboration with other agencies, develop domestic and international systems that can trace outbreaks of foodborne illness back to their source in the food supply chain. As with REACH current judgment is subject to continuous challenge and revision under the

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impetus of new experience captured and rendered accessible to reflection through the interplay of information from local to higher levels and back. A second, indirect, but perhaps ultimately more consequential route for the diffusion of experimentalism in the US is through the common Congressional decision to delegate authority to implement laws that it enacts to state administrations: cooperative federalism. Cooperative federalism is not new. The New Deal Social Security Acts are administered jointly with the states; so too are many of federal welfare programs and the Medicaid statute of 1965 (providing health insurance to low-income populations) that emerged in part from them. The Clean Air and Water Acts of the 1970s and the Telecommunications Act of 1996 depend importantly on federal-state cooperation in various ways as well.25 As Dewey would have expected, experience shows that in many of these cases the implementation of the law reshapes its original conception: talk of rights by state and federal officials helped establish the expectations that gave rise to demands for welfare rights in the 1960s; use of state waivers from federal welfare programs allowed for state-led experiments that led to the 1996 federal welfare reform. Through their own administrative actions and waivers from the federal program, states extended coverage of their Medicaid programs, transforming them from aid to some of the “deserving poor” to an entitlement for all citizens below a certain income level. But two recent and significant pieces of legislation go further in making the joint exploration of possibilities an aim rather an incidental outcome of Congressional intent. The first is reauthorization of the Elementary and Secondary Education Act of 2010, better known as the No Child Left Behind Act (NCLB). As a condition for receiving federal subsidies it obligates states to set their own standards for an “adequate education,” and to create governance mechanisms, including a regime for testing proficiency in literacy and numeracy, that ensure that all students, including various racial minorities and other groups, make annual progress in reducing the gap between their educational performance and the state’s goals.26 The second is the Patient Protection and Affordable Care Act of 2010 (ACA) – the most significant national social rights legislation since the 1960s. The ACA and the regime it creates are in many ways the product of direct and explicit federal-state collaboration. Thus Congress mandated the Secretary of Health and Human Services (HHS) to draft certain regulations “in consultation with” the National Association of Insurance Commissioners (NAIC), the association of state insurance officials. The NAIC has also developed many model statutes and regulations for state use in implementing the ACA; it has directly drafted federal regulations for HHS itself. The ACA is also replete with invitations to the states (and private parties) to undertake pilot programs in various areas. More fundamentally, the design of the health insurance exchanges facilitating purchase by individuals and small business of policies that meet federal standards – a centerpiece of the reform architecture – is to be left largely

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to the states. The phrase “state flexibility” occurs six times in the statute in connection with provisions regarding the exchanges. Under regulations proposed by HHS, moreover, states may, unusually, request the federal government to provide administrative support in the operation of the exchanges. But if certain states choose not to establish exchanges, as they may do under the ACA, then the federal government will provide them in their stead. 27 Thus where previous use of cooperative federalism allowed states to make themselves, in Brandeis’ phrase, laboratories of invention, its elaboration in recent statutes aims to induce and support experimentation. But this further step falls short of creating an experimentalist regime. What is missing is the continuous pooling, at the national level, of local experience and ongoing revision of norms at various levels in the light of it. The absence of such mechanisms is especially clear in experience under NCLB. Defects in, among other things, the requirements for measuring progress towards (state defined) adequacy, and plausible remedies for them, became manifest in the early implementation of the law. But there was no ready means of correcting them. Congressional deadlock has prevented amendment of the law in the course of reauthorization, and the Department of Education is now in effect revising the legislation in collaboration with the states by granting waivers to various provisions of the existing statute on condition that applicant states demonstrate how they intend to meet various new governance requirements.28 Yet even if the most recent extensions of cooperative federalism do not directly establish experimentalist institutions, they may still facilitate their formation and diffusion. For in areas such as child welfare, education, or juvenile justice (for instance, to create alternatives to detention for minority youth disproportionately subject to it) many reform efforts at the municipal and state level, often drawing on national professional communities well aware of the advantages of adaptive institutions, establish pragmatist institutions. New York City and Baltimore are two of many examples. The former mayor of Baltimore, Martin O’Malley, is currently the governor of Maryland and is fostering the elaboration of experimentalist institutions within and among the state’s agencies.29 The intersection of the top-down movement towards cooperative federalism and the bottom-up construction of pragmatist institutions seems likely to create many settings for the emergence of experimentalist regimes connecting the national, state and local levels. More could be said about the possible routes to the spread of experimentalism in the US, especially the role of the courts in creating spaces for innovation in the organization of public administration. 30 But the discussion so far may suffice to establish that there is substantial change in this direction – innovations in the making and administration of law that show that it is feasible to link local and higher learning in public problem solving; that there is no salient barrier to more innovation of this kind, and some reason to think that the drift of developments is in that direction.

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CHARLES SABEL 4. Is There a Politics to Democratic Experimentalism?

The very compatibility of all these changes with our current, manifestly impoverished representative democracy must raise the question whether in the end the drift or shift towards experimentalism might at best yield an improvement in the performance of public institutions yet leave the current, stunted forms of participation in politics, and the erratic relation between popular politics and institutional reform largely unchanged. Have we come this far only to discover a limit that mirrors Dewey’s? Starting with the need for the reformation of the public, and for new forms of communication that would make this reformation possible, he never managed to foreshadow an institutional design for a renascent democracy that might have channeled communication towards the formation of a new public and engaged the public in the search for means to articulate its program and identity. Democratic experimentalism starts with such institutional designs but stops short of saying much of those institutions are related to a new democratic public and the forms of communication by which it is constituted. Is the route different but the end point equally far from the common goal? A partial response is to note that an improvement in the performance of government of the kind experimentalism delivers, and of which it promises more, is no small thing. Our ideas of what government can do are powerfully shaped by what it actually does, our ideas of what participation is possible by the opportunities to participate actually afforded. In this sense (some) schools and other services that work, (some) regulatory regimes that keep us safe while commerce flows create their own constituencies – not the publics affected by externalities that Dewey had in mind, but large groups of beneficiaries, with membership ramifying into the broader society, and convictions about how government can perform, and how to influence that performance that can influence the general understanding of politics. It would not be the first time. The creation of the agricultural extension service of the US Department of Agriculture and other such institutions during the Progressive Era had this effect.31 More generally, the success of institutions in providing child-care, health, vocational training and other services of generally high quality clearly contribute to the willingness of citizens in the Nordic welfare states to bear the high tax burden associated with them.32 Nor need we fear that mobilization in favor of promising possibilities will always be thwarted by the “logic of collective action,” according to which a few, powerful actors, standing to benefit greatly from certain policies, and therefore having incentives to invest in campaigns for achieving them, will always prevail over many, scattered beneficiaries of alternatives, each with too small a share of the respective total returns to have an incentive to organize on their behalf.33 Recent research demonstrates that when “diffuse” actors come to see visceral interests at stake – as in the case of consumers who came to fear themselves and their families in jeopardy from defective products or environmental degradation in the 1960s or parents today

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who fear their children’s future at risk because of deficient schools34 – mobilization is rapid and effective. Similarly with accountability: the continuing review of routines in pragmatist institutions, involving the individuals and firms that engage with them, amount to continuous training in new forms of forward-looking accountability. It creates habits, and those habits form constituents’ expectations of legislative oversight bodies, and of the capabilities required for elected office. Expectations of what kinds of information are relevant to judgment shape the value placed on forms of communications; such evaluations in turn shape the flows of information that inform the public in Dewey’s sense and more generally. But this response is limited. Pressed too far it converges with the fallacious, “naturalistic” strain of Dewey’s thought. The idea that uncertainty gives rise to pragmatist institutions and experimentalist forms of lawmaking and administration, and that these induce new forms of participation and accountability may be closer to the circumstances of our day than Dewey’s argument linking externalities, forms of communication and the rise of new public was to those of his. But it is all too easy to envisage other outcomes of our uncertain times that would further degrade, not improve the democracy we have; and even if the weight of circumstance favoring an experimentalist outcome were greater, to rely on those circumstances as guaranteeing the outcome would be to negate the ideal of democracy as self-determination, individual and social, even in pronouncing its triumph. Yet perhaps, even mindful of this limit, we have not been turning in circles. The emergence of pragmatist institutions and democratic experimentalist form of law making and administration attest the widely diffused, incremental capacity to innovate in response to failed routines that Dewey saw as the defining feature of human nature and the foundation of faith in democracy. These innovations are not self-sustaining; they do not by themselves engender a democratic politics. But perhaps they orient our thinking and imagination, inviting conjecture both by their successes and their limits about further projects that call forth debate and conflict. Perhaps they establish enough of a connection to the currents of reality of our day to fulfill what Dewey saw a necessary condition for putting practical imagination in the service of our ideals. “Ideals,” he wrote, “express possibilities; but they are genuine ideals only in so far as they are possibilities of what is now moving. Imagination can set them free from their encumbrances and project them as a guide in attention to what now exists. But, save as they are related to actualities, they are pictures in a dream.”35 Democratic experimentalism claims no more and no less than to be in this sense a genuine ideal of democracy.

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1. Robert B. Westbrook summarizes Dewey’s late ideal of democracy this way: “At best, then, we can say that Dewey hinted in 1939 at some creative democratic thinking grounded in the prospect of a revitalized, reconstructed Jeffersonian democracy.” Westbrook, “Creative Democracy – The Task Before Us,” presented at the ‘Creativity: Raw and Cooked’ conference, Humanities Center of Lehigh University, 22 March 2005. 2. Most conspicuously and consequentially in the election of 1912, pitting William Howard Taft, a constitutional conservative, against Theodore Roosevelt, whom we would today consider to be an advocate of popular constitutionalism, and Woodrow Wilson, a proponent of the idea of the president as the bearer of a national mandate and the head of a cabinet government. See William E. Forbath, “Popular Constitutionalism in the Twentieth Century: Reflections on the Dark Side, the Progressive Constitutional Imagination, and the Enduring Role of Judicial Finality in Popular Understandings of Popular Self-Rule,” Chicago-Kent Law Review 81 (2006), pp. 967–990. 3. Charles F. Sabel and William H. Simon, “Minimalism and Experimentalism in the Administrative State,” Georgetown Law Journal 100 (2011), pp. 54–93. 4. John Dewey, The Public and Its Problems (Athens: Ohio University Press, 1954), p. 148. 5. Dewey, Public and Its Problems, p. 140. 6. Dewey, Public and Its Problems, p. 145. 7. My good friend Roberto Unger is less forgiving. He observes that American pragmatism and Dewey with it vacillate between two incompatible ideas. The first is captured in “the picture of the human agent thrown into a constrained but nevertheless open world – a world in which everything can become something else and nothing is permanent.” This is Dewey who said “ability to frame hypotheses is the means by which man is liberated from submergence in the existences that surround him and that play upon him physically and sensibly. It is the positive phase of abstraction.” John Dewey, The Quest For Certainty (New York: Minton Balch and Co., 1929), p. 165. The second idea is captured in the tale of the sorcerer’s apprentice: the toolmaker, fashioning instruments to cope with his situation, becomes “himself a tool: a tool of natural evolution.” Roberto Mangabeira Unger, The Self Awakened: Pragmatism Unbound (Cambridge, Mass.: Harvard University Press, 2007), p. 35. The tension is there; it is sometimes vitiating. But any theory of human action that assumes limited foresight, hence unintended consequences, and the possibility of real novelty or innovation of any single and therefore necessary trajectory of development can be understood as having an evolutionary aspect: outcomes, neither fully intentional nor foreordained by higher determinants, are yet shaped by the recursive interplay of intention and constraint. Ansell’s discussion of Dewey in relation to Simon’s science of design (in this volume) suggests that in some settings (for instance, the development of complex products that change our ideas of what devices can do and what we expect of them) the evolutionary perspective is instructive. 8. For Dewey’s petty bourgeois radicalism and populism see Robert Westbrook, “Creative Democracy – The Task Still Before Us,” 2005. Also in Sheila Greeve Davaney, and Warren G. Frisina. eds. The Pragmatic Century: Conversations with Richard J. Bernstein (Albany: State University of New York Press, 2006), p. 191. See also Westbrook, John Dewey and American Democracy (Ithaca, N.Y.: Cornell University Press, 1991), pp. 315, 454–458; and Robert Westbrook, Democratic Hope: Pragmatism

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and the Politics of Truth (Ithaca, N.Y.: Cornell University Press, 2005), chaps. 3 and 5; Robert Johnston, The Radical Middle Class: Populist Democracy and the Question of Capitalism in Progressive Era Portland, Oregon (Princeton, N.J.: Princeton University Press, 2003); and Kevin Mattson, Creating a Democratic Public: The Struggle for Urban Participatory Democracy During the Progressive Era (University Park: Pennsylvania State University Press, 1998). 9. Dewey, Public and Its Problems, p. 215. 10. “It is a poor version of [Henry George’s] ideas which insists only upon the material effect of increase of population in producing the material or monetary increment in the value of land. ... Henry George puts even greater stress upon the fact that community life increases land value because it opens ‘a wider, fuller, and more varied life,’ so that the desire to share in the higher values which the community brings with it is a decisive factor in raising the rental value of land.” Henry George and John Dewey, Significant Paragraphs from Henry George’s Progress and Poverty (Garden City, N.Y.: Doubleday, Doran and Co., 1928), p. 2. 11. For one example see Michael Piore and Charles Sabel, The Second Industrial Divide: Possibilities For Prosperity (New York: Basic Books, 1986). 12. By the way, my own interest in pragmatism and Dewey dates from this period. I was drawn to both by the simultaneous insistence on the inevitability of reliance on tacit knowledge in all action and exchange, and on our ability to explicate much of what we need in what was taken for granted when prodded to do so by troubling disappointment of our expectations. 13. Dewey, Public and Its Problems, p. 47. See also John Dewey, Freedom and Culture (New York: G.P. Putnam’s Sons, 1939), p. 160: “On account of the vast extension of the field of association, produced by elimination of distance and lengthening of temporal spans, it is obvious that social agencies, political and non-political, cannot be confined to localities. But the problem of harmonious adjustment between extensive activities, precluding direct contacts, and the intensive activities of community intercourse is a pressing one for democracy.” 14. At the point of tangency between Dewey’s ideas and the strand of New Deal institution building seeking to reconcile national coordination with recognition of the continuing importance of local particularity stands Karl Llewellyn. Llewellyn was the principal author of the Uniform Commercial Code (U.C.C.), one of the key instruments for harmonizing the diverse state laws concerning sales and other commercial transactions. In Llewellyn’s conception the uniform provisions of the code when applied to adjudication of particular cases were to be interpreted in light of the context of the local customs and practices of trade that had shaped the expectations of the parties in the formation of their agreement. Generalist courts were to have access to this local knowledge through incorporation of merchant juries composed of lay traders expert in the ways of their occupation. Llewellyn’s emphasis on the need for such contextualization derived partly from his own vast experience of commercial law but also from his familiarity of German Romantic ideas of commercial law (especially the writings of the mid-19th century commercialist Levin Goldschmidt), in which the dealings of the local community are the truest expression of the mores of the people. See James Q. Whitman, “Note, Commercial Law and the American Volk: A Note on Llewellyn’s German Sources for the Uniform Commercial Code,” Yale Law Journal 97 (1987): 156–175. When finally adopted the U.C.C. contained countless directives to courts to determine whether the parties to a case had acted “reasonably” or in accordance with the “usages of trade” or “customs;” but the institution of the merchant jury, which would have facilitated

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this determination, was eliminated, and no substitute mechanism provided. Dewey seems to have taken little notice of Llewellyn. But Llewellyn saw important affinities between his work and Dewey’s, which he admired greatly. According to Llewellyn’s biographer, “Llewellyn’s private ambition, as he once confessed in a lecture, was to perform the role of a Dewey in jurisprudence, trying to do for law what the great man had done for other subjects. The most pleasing compliment that could be paid to Llewellyn was to compare him to John Dewey.” See William Twining, Karl Llewellyn and the Realist Movement, (London: Weidenfeld & Nicolson, 1973), p. 423, n. 130. 15. See Anton Hemerijck, Changing Welfare States (Oxford: Oxford University Press, 2013); and Charles Sabel, A. Saxenian, R. Miettinen, P. Kristensen, and J. Hautamäki, “Individualized Service Provision in the New Welfare State: Lessons from Special Education in Finland,” report prepared for Sitra, Helsinki (2010). 16. For an incisive appreciation and critique of Dewey’s conception of schooling against the backdrop of early 20th century currents of education reform, see Richard Hofstadter Anti-Intellectualism in American Life (New York: Alfred Knopf, 1963), pp. 359–388. For discussion of Dewey in relation to current reform movements, see Liebman, James and Charles Sabel, “A Public Laboratory Dewey Barely Imagined: The Emerging Model of School Governance and Legal Reform,” NYU Journal of Law and Social Change 23 (2003), pp. 183–304. 17. Charles Sabel and Jonathan Zeitlin, “Learning from Difference: The New Architecture of Experimentalist Governance in the EU,” in Experimentalist Governance in the European Union: Towards a New Architecture, ed. Charles Sabel and Jonathan Zeitlin (Oxford: Oxford University Press, 2010), p. 10. 18. Regulation 1907/2006. 19. Joanne Scott, “REACH: Combining Harmonization and Dynamism in the Regulation of Chemicals,” in Environmental Protection: European Law and Governance, (Oxford: Oxford University Press, 2009), p. 58. 20. Charles Sabel and Jonathan Zeitlin, ed., Experimentalist Governance in the European Union: Towards a New Architecture (Oxford: Oxford University Press, 2010). 21. Case T–13/99, Pfizer Animal Health SA v. Council of the European Union [2002] ECR II–03305. For discussion see Marjolein B.A. van Asselt and Ellen Vos, “The Precautionary Principle and the Uncertainty Paradox,” Journal of Risk Research 9 (2006), pp. 313–336. 22. Public Law 111–353, 124 Stat. 3855. On the origins and general operation of FSMS see Sabel and Simon, “Minimalism and Experimentalism,” pp. 54–93. On the detailed provisions of the Act see William H. Simon, “Democracy and Organization: The Further Reformation of American Administrative Law,” draft August 2012. 23. FSMA sec. 103(h). 24. FSMA, sec.s 103d, e, i. 25. Discussion of cooperative federalism draws directly on Abbe R. Gluck, “Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond,” Yale Law Journal 121 (2011), pp. 534–622. An alternative interpretation of cooperative sees the simultaneous delegation by Congress of implementing authority the federal executive and to the states as a device by which the legislature, as the principal, can play its two agents off against each other, and eventually secure execution of its will by endorsing the actions of the agent most faithful to. See Roderick M. Hills, Jr., “Federalism in Constitutional Context,” Harvard Journal of Law and Public Policy 22 (1998), pp. 181–196, and for a similar argument Jessica BulmanPozen, “Federalism as a Safeguard of the Separation of Powers,” Columbia Law Review

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112, no. 3 (2012), pp. 460–503. (Some cases do fit this pattern, but as described immediately below a cooperative federalism frequently produces results that no one, congress included, plainly intended at the outset.) 26. For discussion and further references see James Liebman and Charles Sabel, “A Public Laboratory Dewey Barely Imagined: The Emerging Model of School Governance and Legal Reform,” NYU Journal of Law and Social Change 23 (2003), pp. 183–304. 27. See Robert Pear, “U.S. Officials Brace for Huge Task of Operating Health Exchanges,” New York Times, 5 August 2012. 28. For a thoughtful review of the waivers see Jeremy Ayers and Isabel Owen, “No Child Left Behind Waivers: Promising Ideas from Second Round Applications,” Center for American Progress, 27 July 2012. 29. Observation of StateStat meetings with Joel Rogers in Baltimore and Annapolis, Maryland, during July and August 2012, and discussions with Beth Blauer, Director of StateStat in this period. 30. Charles Sabel and William Simon, “Destabilization Rights: How Public Law Litigation Succeeds,” Harvard Law Review 17 (February 2004), pp. 1015–1101. 31. D.P. Carpenter, The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862–1928 (Princeton, N.J.: Princeton University Press, 2001). 32. Charles Sabel et al., “Individualized Service Provision in the New Welfare State,” 2010. 33. Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (Cambridge, Mass.: Harvard University Press, 1965). 34. For extended discussion, see Gunnar Trumbull, Strength in Numbers: The Political Power of Weak Interests (Cambridge, Mass.: Harvard University Press, 2012). On mobilization for school reform see Liebman and Sabel, “A Public Laboratory,” 2003. 35. Dewey, Individualism Old and New (1930; Amherst, N.Y.: Prometheus Books, 1999), p. 72.

Charles Sabel Columbia Law School 435 W. 116th Street New York, New York 10027 United States

Contemporary Pragmatism Vol. 9, No. 2 (December 2012), 57–74

Editions Rodopi ©2012

What would John Dewey say about Deliberative Democracy and Democratic Experimentalism? Gregory Fernando Pappas

In recent years philosophers, political theorists, as well as legal and communication scholars have proclaimed John Dewey as a predecessor, an influence, or a founding father of “Deliberative Democracy” (DD), and, more recently, of “Democratic Experimentalism” (DE). I argue, however, that there is room for questioning whether these recent trends in political theory capture the “thickness” and radical character of Dewey’s view. I explore some important differences between Dewey’s philosophy of democracy and some of the main tenets of DD and DE. The recent selective reconsiderations of Dewey’s philosophy in political theory fail to bring into the present dialogue the more radical Dewey. It is a failure to use Dewey in the most productive way.

In recent years philosophers, political theorists, as well as legal and communication scholars have proclaimed John Dewey as a predecessor, an influence, or as a founding father of “Deliberative Democracy” (DD), and more recently “Democratic Experimentalism” (DE). This seems sound since for Dewey two key aspects of his more radical conception of democracy were deliberation and experimentation. It also shows how pragmatism, and in particular Dewey’s philosophy, continue to be relevant and a source of new reconstructions of conceptions of democracy. I argue, however, that there is room for questioning whether these recent trends in political theory capture the “thickness” and radical character of Dewey’s view. I will explore some important differences between Dewey’s philosophy of democracy and some of the main tenets of DD and DE. These differences are important because from the standpoint of Dewey’s philosophy they may also point to some serious limitations of these two recent pro-democratic theoretical movements in dealing with the challenges we face in the 21st century in our counterfeit democracy. The recent selective reconsiderations of Dewey’s philosophy in political theory fail to bring into the present dialogue the more radical Dewey. It is a failure to use Dewey in the most productive way. First, some qualifications are in order. In my reference to DD and DE, I am aware that my criticisms may not be relevant to the diversity of thinkers and

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views under the labels. I will therefore limit myself to criticisms of what I think are the broadly shared commitments shared by many of the key figures. I am also aware that it is a subject for debate whether DE is just one new form of DD. For sure, DE stresses deliberation as much as any DD. One difference is the extent to which DE is specifically concerned with the design or architecture of institutions. As Dorf and Sable claim, their proposal is a “new model of institutionalized democratic deliberation that responds to the conditions of modern life.”1 It could be argued that DE is in fact an improved form of DD because it stresses institutional reform, something missing or not addressed enough in many forms of DD. I will not here address the differences between these views. Instead, I will consider what the critical Dewey that I envision would say about first DD and later DE. In so far as DE starts with the same assumptions about deliberation as DD, the criticism of the latter are applicable to the former, but in the last section I will focus more on the distinctive features of DE. 1. What would Dewey say about Deliberative Democracy? There are, of course, affinities and similarities between Dewey and Deliberative Democracy. Dewey would find the recent “deliberative turn” in political theory a step in the right direction. The problems that Dewey encountered overlap with our present situation. Democracy was and is in crisis. Democracy in America continues to be in need of revitalization or rehabilitation. The same sort of Liberalism that Dewey criticized continues to be under attack as being even the enemy of Democracy. As Robert Talisse says, “a question central to current political theory is: can a society based upon liberal principles generate and sustain the conditions necessary for effective democracy?”2 Contemporary societies that call themselves democratic suffer from the evils that critics of democracy (since Plato) are quick to point out; among them, the homogenization of culture and the unwise decisions of a bewildered, fragmented, easy-to-manipulate, and apathetic public. To this problematic situation the response of Dewey and deliberative democracy is similar. Communal deliberation and judgment can be more than the aggregation of private preferences, or the competition among fixed preferences and standpoints. Recent political theorists have argued, as Dewey did, for the power of dialogue to transform the preferences and views of participants. However, in examining the recent deliberative turn in political theory, a Deweyan must be critical of the notion of “deliberation” that is often assumed. Deliberative democracy does not have a robust enough view of deliberation that can be of any use to deal adequately with the problems of our counterfeit or superficial democracy. There are at least three common problems with their view of deliberation, that I will consider in the following sections: (a) The end of deliberation: They tend to assume some normative end that is fixed and external to the deliberative process they advocate.

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(b) The nature of deliberation: Deliberation is understood under a “rational” and “epistemic” model of discourse: an exchange of propositions, reasons and arguments governed by rules and reasoning that often exclude emotional and imaginative elements. (c) The context of deliberation and its function: Deliberation is abstracted from the problematic situations in which it occurs and that can guide inquiry. 2. The End of Deliberation Problem (a) has been already questioned by Robert Talisse. He has shown recently how “contemporary deliberativist theories are not fully deliberativist because they assume restrictions and goals to democratic deliberation that are external to the deliberative process they advocate.”3 For Dewey, even the most obvious or stable normative principles cannot be excluded from further deliberation or criticism simply for fear they may carry the day. The authority of Dewey’s proposals for a democratic way of life does not derive their validity or authority from anything outside the ongoing struggle and inquiry about democracy. If Talisse is correct (as I think he is), then this is a sense in which Dewey is more deliberativist than the contemporary deliberativists. Frank Cunningham claims that, “whatever differences there are among deliberative democrats about ultimate goals, they agree that, at least as a proximate goal, sincere democratic deliberation will encourage citizens to seek consensus over common goods.”4 But for Dewey, neither consensus nor any other goal should be set as the fixed end of deliberation. 5 For Dewey, the present quality of discussion is more important than the reaching of some preconceived future consequence such as consensus. In this, he makes democratic discussion the means and the end of democracy. Consensus-promoting discussion is a good thing in a world where conflict is rampant, but discussion is even better when the process of discussion is meaningful (regardless of some outcome), and there is a present expansion of everyone’s experience. Dewey shares with the deliberativists the concern that the quality of deliberation in our “democracy” continues to deteriorate, but the quality of any actual discussion is not enhanced by imagining what deliberation would be like under ideal conditions or even by making its quality the end-in-view of our deliberations. Instead, it is through the investigation of the conditions of the discussion that may indirectly help improve the quality of the communications in different contexts. To be sure, we do not have direct control over the quality of our communications. The alternative, however, is not to do anything and to expect somehow that the quality of present dialogue will improve. Simply to inquire about what are the present obstacles to a better communal inquiry is doing something. Some of these challenges are not any different than the ones Dewey foresaw: radical economical inequalities, pluralism, complexity, and the

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new technological means of manipulation. But I am afraid that many deliberative democrats today are not properly equipped to philosophically deal with these challenges. Why? Because they have a constricted view of what goes on “in” and “around” deliberation. This is what (b) and (c) above are about. 3. The Nature of Deliberation First, for many (especially the first generation) deliberative democrats, deliberation is understood under a “rational” and “epistemic” model of discourse: an exchange of propositions, reasons and arguments governed by rules and reasoning that often exclude emotional and imaginative elements. Dewey would be sympathetic with the recent feminist thinkers that have criticized the narrow view of deliberation that is assumed by many in deliberative democracy. Young (1996), for example, argues against their restriction of deliberation to argument and rational speech. This is not surprising since many of the thinkers of the deliberative movement have been strongly influenced by Rawls (1993) and Habermas (1996) who, in spite of their differences, claim that their deliberative ideal amounts to a conception of public reason. Rawls and Habermas are not traditional rationalists, but it has been questioned whether their more flexible form of rationalism is flexible enough to accommodate or to include all there is to deliberation and to democracy. There is, as it were, a “rationalistic Kantian residuum” in many of the deliberative democrats and that residuum shows up at different places in their views. For instance, it is clear that, in spite of their differences, Benhabib (1996), Cohen (1996, 95–119), Drysek (2000), and Bohman (2000) agree that the reason to be more democratic is to be more rational. This traditional subordination of the moral and the political to the abstract end “to be rational” (or “reason”) is not in Dewey and should be questioned. Contrary to the assumptions of modern philosophy, there is no more obvious good reason to be rational than there is to be moral. However, the rationalistic assumptions of many Deliberativists are most evident in their restricted views of public deliberation. Deliberativists have taken, as their task, to investigate what are the norms or rules of public reason. What seems narrow about this approach, from Dewey’s perspective, is the attempt to capture the spirit of democracy in terms of rules and the fact that those rules are usually about what type of reasons or ways of argumentation are relevant. As Young (1996) has pointed out, most deliberativists tend to exclude rhetoric, storytelling, greetings and any other means that are not the sort of considerations traditionally associated in philosophy with “rational” speech. This exclusion is problematic because it is a bias towards the mode of speech of certain groups (e.g., academic philosophers and communication scholars) and because it would leave out much that is essential to good deliberation or communication. Dewey would agree, and it is worth-

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while for us today to consider how much more richer is his account of deliberation than any proposed so far by deliberativists. For Dewey, the emotional (qualitative) and imaginative are integral aspects of any deliberation, moreover, they are key to its own regulation. Deliberation may require reasoning and examination of propositions, but it is also an imaginative process and, more importantly, it is ultimately the qualitative aspect that provides the guidance needed in reaching judgment. “The universe of experience surrounds and regulates the universe of discourse but never appears within the latter” (LW 12:74).6 Deliberation is not a mental process. It is something we do that requires the learning and operation of certain embodied habits. Some of these habits go beyond the intellectual capacities associated traditionally with reason or logic. The ability or disposition to evaluate the logical implications of our beliefs and the habit of not making inferences that are not warranted by the evidence may be important, but so are habits of imagination and emotional sensitivity. For Dewey, even the proper deliberations characteristic of science require qualitative sensitivity. He wrote, “scientific thought is, in its turn, a specialized form of art, with its own qualitative control. The more formal and mathematical science becomes, the more it is controlled by sensitiveness to a special kind of qualitative considerations” (LW 5:252). It is important to have individuals willing to take the standpoint of others and, in sum with all of the doing and undergoing habits that are required for a meaningful and educative interaction. One may argue that what all this amounts to is that Dewey simply had a wider and fuller view of “Public Reason,” and that therefore he was as committed to “reason” as anyone else in deliberative democracy. Perhaps, but I would argue that such a move would fail to capture what is at the heart of Dewey’s philosophical vision and what is worth bringing forth in the context of present debates. I am not even sure that replacing the term “intelligence” for “reason” is sufficient. In ethics and in politics, the rationalist tendency has been to consider the affections (and anything that is associated with private and personal interest) as obstacles to proper “public” deliberation. For Dewey, the alternative to the view of public deliberation as an aggregation of fixed personal preferences is the view of public dialogue as a process that is initiated by experiencing shared problems, and where certain imaginative and effective capacities, such as the sympathy needed to take the standpoint of the other, are operative (and cooperative) in reaching judgment. The character of any communal inquiry depends on its participants and the quality of their interaction, but it is also true that in the process the participants are transformed. Proper public deliberation requires selves with “public concern,” but this type of self can only be fostered by deliberation. There is no objectionable circular argument here. The result is simply the consequence of a view that denies the notion of a self that is antecedent to its interactions.

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From Dewey’s standpoint, the root of the deficiencies of deliberative democracy is that they tend to presuppose a knowledge-language centered view of deliberation and judgment which comes from the perennial mistake in philosophy to reduce experience to knowledge. This mistake is a philosophical mistake with practical consequences. It has failed to equip philosophers with the resources to engage in the sort of criticism that we need in order to deal with the present threats-obstacles that distort democratic deliberation. For instance, I do not think that enough has been said, at least among philosophers, about the challenge presented by the new forms of emotional persuasion. In particular, there is no confrontation with the medium in which dialogue in public life is had. We live in a world in which images and other non-cognitive and non-verbal means preclude or guide inquiry. The mass production and consumption of images that please and deceive have taken center stage in public discourse. This non-propositional “stuff” is easily dismissed by rationalist deliberationist as simply irrational, psychological, and beyond the realm of logic. This is the same sort of magical safeguard that Dewey criticized in philosophy: just label something as “unreal” or “irrational” and somehow it will go away. A Deweyan view of public deliberation is not as prone to this mistake because it holds that what is emotional, qualitative, imaginative, non-cognitive, non-verbal is an important aspect of any genuine process of deliberation. Its solution is not to pretend to repress what cannot be repressed. I am skeptical that the solution to our problematic situation lies in a return to a print centered culture where propositions and their logical relation are the means to truth and knowledge and are the main vehicles of public deliberation. Both the feminists and Dewey are, however, open to the charge that their views open the “doors too wide.” If one explicitly includes in democratic deliberation the non-propositional and emotional factors, then how can we avoid all of the obvious dangers and evils that come with that inclusion? Emotional unity or solidarity may at first seem like innocent things, but what about the nationalism and ethnocentrism evoked by emotional unity that can cause fragmentation and divisions within civil society and the globe? We need not assume or adopt a “stiff” rationalism to be concerned about the consequences of some forms of rhetoric. Are we stuck in between “opening the doors” wide open, thereby inviting the problems that I just described, and the restrictions of many deliberative theories to certain types of reasons? The restrictions imposed by many deliberative theories are worrisome. The view that collective judgment and decisions must be based on only “rational” and “public” reasons or considerations have been considered by thinkers like Michael Sandel as a part of the legacy of a repressive Liberalism. He argues that this repression under the banner of “neutrality” that has led to the very excesses it seeks to exclude. Restricting democratic deliberation to argumentation or to “rational-public” reasons leads to a formalistic-procedural view of democratic interaction that undermines or brackets the things that in actual communities bring unity and make dialogue to be more than a task of drudgery.

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Does Dewey, however, provide any practical advice about how to avoid the dangers of a society where public discourse is susceptible to the distortions of emotional appeals and manipulation? He relies on good judgment, but this depends on the cultivation of habits. Encouraging in a community certain virtues is the best way to prepare for particular collective decision-making. The best way to counteract the seduction of images, coercive rhetoric, wishful thinking, and appeals to fears, is to work on the conditions required to encourage individuals that have the capacity to be critical. Instilling virtuous traits is the alternative to the imposition of proper rules or restrictions on public discourse, and the reason why Dewey put so much faith in education. This is the most “democratic” solution since the defenses against the forces mentioned emerge “from within” instead of being something external or imposed to particular situations and communities. But is not Dewey just saying we need to work on making people more “rational”? Is not making people more rational just a new form of rationalism? Dewey’s notion of the ideal character is, however, so inclusive and so distant from the traditional use of the word “rational” that even “intelligence” (a term he preferred) seems narrow, misleading, and distracts from appreciating the uniqueness of his view. According to Dewey’s view of the ideal character, what we need to counteract the seduction of images and emotional appeals that distort inquiry is more, and not fewer, emotional and imaginative habits. As he notes, “The conclusion is not that the emotional, passionate phase of action can be or should be eliminated in behalf of a bloodless reason. More “passions,” not fewer, is the answer. To check the influence of hate there must be sympathy, while to rationalize sympathy there are needed emotions of curiosity, caution...” (MW 14:136, my emphasis) Pragmatists understood the force of habits. It is not enough to become consciously aware that we are emotionally manipulated to protect ourselves from being emotionally manipulated. What we need is characters that are emotionally receptive to doubt and with a habitual passion for criticism. To counteract the craving and comfort provided by absolutism and dualisms, we must learn to habitually find some emotional zest, thrill, in facing uncertainty and contingency. One could also argue that against the seduction of images what is needed are characters that can negotiate more not less images. Visual literacy, communication, and criticism may well have their own logic and the proper place in the sort of education that is needed. The main difference between Dewey and recent deliberativists is that for Dewey there is more to experience than what is at the foreground of inquiry. There is more to democratic experience than democratic deliberation. How we experience each other in our everyday local and direct interactions is something more inclusive than how we talk and inquire together. Democratic discourse takes place in the non-discursive context of our democratic relationships, which is why democratic “communication” is perhaps a notion that captures better Dewey’s view than simply “deliberation.” Hence, as important as public

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deliberation was for Dewey, the “turn” that he hoped for in the philosophy of democracy was towards a view of democracy as experience. Thus, for Dewey, the recent effort to formulate a normative vision of democracy in terms of rules and conditions of ideal deliberation may be too formal (not substantial enough). As Frank Cunningham has recently noted, “deliberative-democratic theory may be seen to overcome the formalism of liberal democracy: by introducing the idea of deliberation and its conditions, substantive content for abstract democratic rights can be justified. A question that poses itself is whether deliberative democracy might not itself be too formal.”7 To avoid the same sort of formalism that is common in ethics, democratic theory should formulate its normative prescriptions in terms of certain types of relationships and habits instead of rules. If people are genuinely engaged in democratic deliberation, it is because they have certain habits and not because, as Jürgen Habermas claims, they are committed to certain implicit rules of discourse.8 Central to democratic deliberation is judgment and, for Dewey, this is a context-relative activity that is best fostered by encouraging certain virtues. Virtues as embodied habits (or ways of interacting in a deliberative situation) are better than the mere following of rules in describing and capturing the spirit of democratic deliberation. Democratization takes more than improving rules. We must, for example, be asking what are the proper imaginative and emotional capacities that are needed to have more people taking seriously (“to heart”) the standpoint, reasons, and beliefs of others. Without a cadre of people with these sort of imaginative and emotional capacities there is no hope for democracy. The art of listening needed in a democracy is a matter of embodied habits. As Mary Carole McCauley has pointed out “in a world of visual stimulation listening culture is drowned out” and we have forgotten how to listen.9 How can we in a democracy expect to have more people willing to change their “minds” (when they engage in public debate) if the basic habits of careful listening are in jeopardy in our visually centered culture? Some recent deliberativists, like Robert Talisse, are moving away from rules and reasons by proposing the importance of the “deliberative virtues” as the intellectual habits that can “foster in the individual epistemically responsible habits of belief.”10 Dewey would, however, be suspicious about the separation of epistemic virtues from moral virtues; the very integrity of our lived character forbids such separation. Moreover, some democratic virtues, such as trust, tolerance, empathy and openness are virtues that serve more than epistemic goals.11 Thus, for Dewey, the “deliberative turn” must be more than an “epistemic” turn. Democracy is more than a means to knowledge. There is more to democratic inquiry than the exchange of reasons and arguments by thinkers with excellent epistemic habits. 4. The Context of Deliberation and its Function Deliberativists claim to be more empirically grounded than most traditional political theories because they start with deliberation and not with a priori

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claims about human nature or imaginary state of nature scenarios. But sometimes deliberativists tend to make the same mistake of traditional epistemology, when they set out to investigate and describe knowledge, inquiry, belief, and truth by abstracting them from the evolving situations in which they operate. For Dewey, this is a non-empirical starting point. To be fair, not all deliberativists neglect the problematic situation as the context in which public discourse occurs. This is clear by examining the view of one of the most Deweyan of all of the deliberativists today, James Bohman. However, even Bohman has a limited view of the function of a problematic situation in comparison to Dewey. For Bohman, thinkers since Rawls and Habermas have set up excessively strong and unrealistic requirements for public deliberation because the postRawls thinkers start with an ideal procedure instead of how deliberation actually occurs. In contrast, Bohman claims to start with “a more empirical, practical, and Deweyan approach.”12 According to Bohman’s “empirical account,” public deliberation is a dialogical process that is initiated by a problematic situation to “restore cooperation among actors and coordination of their activities.”13 The “exchange of public reasons in the give and take of dialogue makes speakers answerable and accountable to each other” and it is “public” in the sense that it is a “joint social activity.”14 There is no doubt that Bohman’s account is a step away from the overly rationalistic neo-Kantian accounts of public deliberation of other deliberativists, but how empirical and Deweyan is it really? Dewey did think of democratic communication as a “joint undertaking” that aims at resolving concrete problematic situations. Disappointingly, Bohman says very little about the sort of problematic situations that initiate public deliberation beyond that they are about “conflict.”15 Moreover, even though Bohman acknowledges the importance of problematic situations, it is presented as just what provokes the inception of deliberation. For Dewey, on the other hand, the problematic situation (in its qualitative character) guides deliberation, determines the type of inquiry, and unifies all of the elements implicated, including the deliberators. This difference between Dewey and Bohman about the nature and function of problematic situations is an important difference because it bears upon the normative proposals proposed by each of these thinkers. For Bohman, what distinguishes public discourse from parochial discourses (as in science) is that public discourse does not presuppose agreement of regulative standards of justification. What is crucial is that the reasons used are “convincing to others.” Public discourse merely aims to “produce claims that are wide enough in scope and sufficiently justified to be accountable to an indefinite public of fellow citizens.”16 The measure of success in public deliberation is the willingness of everyone to continue to cooperate. Bohman envisions groups or agents as merely trying to “jointly construct publicly convincing reasons.”17 A particular strength of Bohman’s view is that he shows how the unity needed in democratic deliberation is possible, even among radically different

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groups, without them sacrificing their deeper commitments or adhering to some formal procedural rules (as in many forms of DD). But, for Dewey, a crucial function of the problematic situation that triggers deliberation is as the basis of joint activity between groups that Bohman encourages. The aim of public deliberation is the amelioration of a particular shared problem that affects everyone to different degrees. A public emerges when those affected by shared problems become aware of their interdependency and the need to engage in a joint activity of examining and monitoring consequences. Without problematic situations, an important source of solidarity is left out of a democratic vision. It has been said that, “the depression and World War II produced a generation of civic minded Americans. As that generation has aged, giving way to less trustful, more isolated Americans, civic engagement and social capital have declined.”18 The vague but deep sense that “we are all in the same boat,” equally vulnerable and interdependent can unify even the most disparate of relationships. Perhaps only when we all come to feel that the integrity of the biosphere is a shared problem will there be any hope to inquire together, in spite of our differences, as a multicultural world.19 For Dewey, the problematic situation is also crucial to account for the source of guidance and success in deliberation. Deliberation is successful not merely when, as Bohman suggests, it is an outcome “acceptable to all” in light of the reasons that were used. This seems to make a form of consensus the only standard, test, or source of guidance. For Dewey, deliberation is successful when the deliberation ameliorates the problem that brought the parties into the table. Without the problematic situation, there is nothing to guide public discourse beyond the reasons and beliefs of the participants. In his Logic: the Theory of Inquiry, Dewey argues that there is no deliberative inquiry worth pursuing that does not guide itself “by sensitivity to the quality of a situation as a whole. In ordinary language, a problem must be felt before it can be stated. If the unique quality of the situation is had immediately, then there is something that regulates the selection and the weighing of observed facts and their conceptual ordering” (LW 12: 76).20 Without the guiding role of the unique problematic and qualitative situation that is being transformed, a deliberativist’s account of public deliberation is at the mercy of the objection that it does not have enough of a normative backbone, nor can it avoid the charge of circularity and relativism. A communitarian can appeal to some unified conception of the good as providing some sort of ultimate standard or normative grounds if confronted by this challenge. The deliberativist, on the other hand, seems to have nothing more than deliberation to rely on. How is the belief in the authority and the power of deliberation any different than a sophisticated form of conventionalism where human conversation becomes the ultimate authority? At least during the enlightenment, the philosopher’s appeal to “Reason,” however vague and problematic, promised enough stability, universality, and guidance to make them attractive. But if, as deliberativists like Bohman seem to suggest, the best we can do is to engage in

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an open ended dialogue among ourselves hoping for just consensus, one could argue that we might as well return to find some fixed and final authority. What guides deliberation or dialogue? Many deliberativists have tried to answer that question in terms of the exchange of reasons or the implicit commitment to rules among participants in public discourse. The deliberativists assume that with the proper conditions, human talk can somehow improve itself. Such a notion is fine, but, from Dewey’s perspective, there is actually more to rely on than just talking to each other or exchanging reasons. The ideal is not to talk merely to convince each other. The ideal is also for everyone to have the willingness to concede to the authority of a communal judgment that is the result of transacting with the world and learning from it. This is not a “behind the curtains” world but the qualitative situations that we are in, i.e., lived experience or nature. There is no antecedent reality that we must copy, but there is a “hard, thick independent reality” that we must interact with and in. So that, even our beliefs and concepts “are not ‘free-floating’ constructions; rather they are ultimately rooted in and contoured by our meaningful interactions with, a thick, resisting universe in which we are embedded.”21 In other words, for Dewey, communal inquiry is, at best, not a human solipsistic process where your reasons, concepts, and beliefs just “bump” or are tested against mine. We must find a way to deliberate where you and I can subject our reasons to some test that requires we transact with the world we cohabit. We may not always find such a test. We may disagree about what is a good test. We may find that even after the test we disagree in how we interpret the results, but that is the best we can hope for. What Dewey’s method requires is that the participants are willing to learn and change from interacting in a certain way in experience, and have the willingness to accept the lessons and grain of experience. In other words, there is more to Dewey’s democratic vision than having faith in the power of human dialogue or humanity. Dewey’s democratic vision includes a faith that, by transacting with and in nature (or the “world”), we can find some guidance in particular situations as to what to do and where to go. There is nothing esoteric or transcendental about this faith. It is present in the willingness of the artist to guide her artistic process by her ongoing relation (transaction) with materials. It is present in the scientist’s willingness to change her hypothesis according to her experiments. It is present in the willingness of participants in democratic deliberation to mold and to change their decisions according to the unique problem that is being suffered. There is nothing inherently naïve about this faith. There is no certainty, and we take the risk of fooling ourselves when we put our faith in guiding ourselves by what we experience. Unfortunately, this is not convincing enough for people that want more certainty or foundations, but it seems to me more robust, and therefore more convincing (plausible) than presenting democracy as merely a form of dialogue, discourse, argumentation. In short, democracy is about a way of interacting with others and nature, that guides itself by the same process. It is a transformation from within our dialogue with present circumstances.

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GREGORY FERNANDO PAPPAS 5. What would Dewey say about Democratic Experimentalism?

Democratic experimentalism (DE) is another recent development that claims to be inspired by the philosophy of John Dewey and pragmatism in general. According to Dorf and Sabel, “The backdrop of our design is the pragmatist account of thought and action as problem solving in a world, familiar to our time, that is bereft of first principles and beset by unintended consequences, ambiguity, and difference. Thus, a central theme of the pragmatism of Peirce, Dewey, and Mead is the reciprocal determination of means and ends.”22 DE stresses deliberation as much as DD. I examined above three problems that Dewey would have with the view of deliberation that is often assumed in DD. Does DE perpetuate or question the problematic assumptions (at least from Dewey’s perspective) about what goes on and in deliberation that I have disclosed in the previous section of this paper? One would have to consider whether DE assumes some normative end that is fixed and external to the deliberative process they advocate (a above); whether they understand deliberation as only a “rational” and “epistemic” model of discourse (b above); and whether it tends to abstract deliberation from the problematic situations in which it occurs and that can guide inquiry (c above). While I think these questions are important, I will here limit my scope to examine DE in light of what distinguishes it or what is it distinctive contribution relative to DD. One such difference is the extent to which DE is specifically concerned with the design or architecture of institutions. As Dorf and Sabel claim, their proposal is a new model of “institutionalized democratic deliberation.” It could be argued that DE is in fact an improved form of DD because it stresses institutional reform, something missing or not addressed enough in many forms of DD. Moreover, pragmatism should welcome DE since it has the reputation of being often naïve about institutional matters.23 For Dewey, institutions do matter in regard to ameliorating the quality of our present democratic experience, as mentioned before, this is a larger aim than ameliorating the quality of public discourse. What aspects or tenets of DE are congenial or supportive of Dewey’s democratic vision? Dorf and Sabel identify a new form of government or relation between institutions, one that calls for more decentralization, deliberation, deregulation, and experimentation. Democratic experimentalists claim that this approach offers pragmatic solutions to social problems. They propose an alternative to hierarchical centralized organization. Changes in the organization of cooperation are needed, more diffused (less centralized), more horizontal (less hierarchical), and much more experimental (less rigid or ideological). The task of DE is to elaborate the details of an architecture that shows how our primary institutions should function. While not all the details have been worked out the tasks seem clear. The system of design needs to be one where we make possible people and institutions learning from each other’s success and failures while avoiding a centralized search for solutions. The collaboration that

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they have in mind is a “public model of problem solving” that avoids the sort of national solutions that do not address the particularities of local experiences, but also the scenario where locales or publics in isolation have no way to learn from or monitor each other about their problem solving. What they aspire to is a “system in which citizens in each locale participate directly in determining and assessing the utility of the services local government provides, given the possibility of comparing the performance of their jurisdiction to the performance of similar settings.”24 They offer a complex view about the function of each of the institutions that make up the system. The role of Congress is to “authorize and finance experimental reform by states” in seeking solutions to problems that require public action. But “this authorization would only be granted on condition that those who engage in the experiment publicly declare their goals and propose measures of their progress, periodically refining those measures through exchanges among themselves and with the help of correspondingly reorganized administrative agencies.”25 The role of the courts would be “to ensure that subnational experiments fall within the authorizing legislation and respect the rights of citizens.” The system that they envision is one that allows local communities the freedom to experiment but with enough restrictions not to violate individual rights while also encouraging mutual learning among national communities or publics. “In this way the vindication of individual rights encourages mutual learning and vice versa, and judges’ discretion in applying broad principles is schooled and disciplined by actual experimentation with possibilities they could never have imagined. We call the overall system of public problem solving that combines federal learning with the protection of the interests of the federated jurisdictions and the rights of individuals democratic experimentalism.”26 Democratic experimentalism is a system of problem solving that allows individual jurisdictions to be informed of similar experiments (and their success in reform) elsewhere and can hold their institutions to account. It would “give rise to a new local politics of detailed debate on the advantages and disadvantages of current choices, given possibilities demonstrated else-where, as well as a new national politics focused on differing interpretations of the broad patterns of experimental results, and their implications for redirecting experimentalism and its institutions.”27 An important feature of democratic experimentalism, that distinguishes it from some versions of DD, is that it is not fixated on holding consensus as the end. It is not a system designed to get rid of conflict but to improve deliberation (public debate) by making possible a more fruitful and democratic exchange of reasons and evidence. Its aim is to “change the reasons and evidence produced in public debate, and with them the conditions for participation in civic life, so that our disputatious democracy is made both more effective as an instrument of public problem solving and more faithful to its purpose of assuring the selfdetermination of free and equal citizens.”28 This emphasis on “reasons and evidence” does raise questions as to whether DE adopts without questioning the

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“rationalists” view of deliberation that was mentioned earlier and that Dewey would question. But, again, I will not here consider this possible point of difference. The democratic experimentalism of Sabel and Dorf is not an alternative political view that totally rejects the viability of the institutions that we have come to associate with Democratic Liberalism. They say, “we offer the model of democratic experimentalism not as an alternative to the American constitutional tradition but as an interpretation of it.”29 The authors, however, are not as conservative as this may sound. What is being proposed is nothing less than institutional changes, and there is no appeal to returning to an original understanding of the constitution. On the contrary, it is a reinterpretation that focuses on experimentation and deliberation as keys to good government and social order. Institutional change is needed to achieve the sort of public discourse dreamed by many DD. What would Dewey say about DE? There is much in the above broad characterization of DE that Dewey would find on target and exciting. The emphasis on publics, problem solving, experimentation, fallibility, communication, and institutional reform are things that Dewey thought were key to the amelioration of democracy in the 20th century. But again, as with DD, does DE capture all that Dewey thought was needed for a “thick” and substantive conception of democracy (as an alternative to the “thin” conceptions of traditional Liberalism)? The focus of DE is to develop the organizational principles of the design or structure of how our institutions should work. This is similar to the goal of many DD’s in finding the proper rules of deliberation. But from Dewey’s standpoint there is a similar danger. No amount of architectonic principles and plans are sufficient. If DE does not address the importance of habits and relationships, their project is liable to be too “thin,” “formal,” “legalistic,” and “top down” in spite of its good aims and intentions. For Dewey, institutions do matter in regard to the quality of democratic experience but without stressing the importance of habits and character how can DE overcome the formalism and “top down” view characteristic of Liberalism, and that Dewey objected to? Why assume that if we reform our institutions a more democratic experience will “trickle down” in the lives of particular people, relationships and communal situations? To be fair, DE intends to make a connection between laws and the large institutions (legislature, courts, congress) and particular situations. The proposal is a design that allows for experimentation and revision in light of varied and changing circumstances. It tries to counteract both big government and the scenario of a pluralism of closed communities (without mutual learning). But DE tries to accomplish all of the above by elaborating the details of an architecture that shows how our primary institutions should function. Its “formalism” resides in its focus on operation principles of design or structure. Dewey would not deny this is important, but taking this as democracy or as the core of what is need for democracy, is like confusing the skeleton for the living body of a person.

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The claim that Dewey would make, and that I wish to support here, is that the proposal so far of DE does not have a chance without the embodiment in citizens of certain virtues. Let us examine some of the key proposals of DE and consider what virtues (as habits in a character and operative in the ideal communication) it presupposes or requires. According to DE, institutionalized democratic deliberation is not a derivation from first immutable principles or the achievement of fixed ends, but a fallibilistic method that takes serious the reciprocal determination of means and ends. This is the method needed in a world where there are unintended consequences, ambiguity and plenty of disagreement. Dorf and Sabel explain how this is Dewey’s vision: As a theory of thought and action through problem solving by collaborative, continuous reelaboration of means and ends, pragmatism suggests that advances in accommodating change in one area often have extensive implications for problem solving in others. Democracy was the method for reflecting on the connection of means to ends in social activity. Specifically, for Dewey, it was a method for identifying and correcting through public debate and action the unintended consequences of coordination among private actors.30 This is indeed Dewey, but Dewey knew that this experimental democratic vision requires a particular but complex experimental character in communication. This why Dewey’s democratic hope was closely tied to his faith in education. Dewey saw that the process of democratizing public deliberation and our institutions required that we count on individuals (characters) and communities or relationships already embedded with dispositions very different than those of a society where there is a pervasive quest for certainty. The quest for a better society and institutions is the quest for one that has the capacity to embrace the “ambiguity of means and ends” and the unexpected (“localized breakdowns”) instead of search for certainty and first principles (as in forms of liberalism that appeal to ends that are fixed or to Reason). This however requires the predominance of a certain type of character and not just one that has intellectual or “epistemic” virtues. What we need are people who possess a character that is emotionally receptive to doubt and possess a habitual passion for criticism. To counteract the craving and comfort provided by absolutisms, a democracy that is experimentalist must count with politicians and plenty of people that habitually find some emotional zest and thrill in facing uncertainty and contingency. Institutional reform that ignores this is bound to be ineffective. Democratic experimentalism is a program that as a whole prescribes stability with flexibility. But the desired design and architecture requires (as integral to it, and not as mere means) the operation of certain communal and personal habits. Institutional transformation begs for experimentation. If

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experimentation means that policy measures should be taken as plans of action, as experiments to be tested, then this requires characters with the virtue of openness, with a willingness to test and revise. If experimentation means observation of conditions of problematic situations, then this requires people who have a certain sensitivity to context (instead of ideologues). If experimentation requires a survey of those interests and values at stake when policies are evaluated then this requires sensitivity to whose interest counts in one’s community. To test institutional makeovers requires some time to see the consequences of policies enacted. As Dewey observed, “the great social changes which have produced new social institutions have been the cumulative effect of flank movements that were not obvious at the time of their origin” (LW 14:96). Therefore, we need characters that have patience and not expect always a quick fix or result (something lacking today). Long term consequences are often uncertain, so we need characters that can embrace uncertainty instead of the quest for certainty behind the quest for exact and quantifiable results. In sum, while DE is conducting a much needed inquiry about how to reform our institutions, Dewey would argue that we must also engage in an interdisciplinary inquiry to determine what are the proper intellectual, imaginative, emotional capacities and habits needed to live a more experimental and democratic life.

NOTES 1. Michael C. Dorf and Charles F. Sabel, “A Constitution of Democratic Experimentalism,” Cornell Law Faculty Publications (1998), p. 283, available online at http://scholarship.law.cornell.edu/facpub/120. 2. Robert B. Talisse, Democracy after Liberalism: Pragmatism and Deliberative Politics (London and New York: Routledge, 2005), p. 44. 3. Talisse, Democracy after Liberalism, p. 262. 4. Frank Cunningham, Theories of Democracy: a Critical Introduction (London and New York: Routledge, 2000), p. 165. 5. There is even no reason why agreement should be emphasized as a condition of democratic deliberation. Ideal democratic deliberation does assume that there is some agreement, for the denial of any agreement is as fictitious as the denial of any difference. 6. Citations of the works of Dewey in this chapter refer to the critical edition published by Southern Illinois University Press. In the citations the initials of the series are followed by volume and page numbers. Abbreviations for the critical edition are: EW – The Early Works (1882–1898); MW – The Middle Works (1899–1924); LW – The Later Works (1925–1953). 7. Cunningham, Theories of Democracy: a Critical Introduction, p. 180. 8. This is at least one most common understanding of Habermas. See Cunningham’s Theories of Democracy, p. 176. 9. See http://www.friends.ca/News/Friends_News/archives/articles08080302.asp. 10. Talisse, Democracy after Liberalism, p. 314. 11. Openness contributes to a better quality of our present experience and is

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required in order to learn from each other to appreciate (e.g., aesthetically, morally) the features of our everyday experience. This has very little to do with truth and knowledge unless one wishes to reduce all experiences to knowledge experiences, something that is for Dewey the philosophical capital sin! 12. Bohman, Public Deliberation: Pluralism, Complexity, and Democracy (Cambridge, Mass.: MIT Press, 2000), p. 7. 13. Ibid., p. 41. 14. Ibid., p. 17. 15. Ibid., p. 41. 16. Ibid., p. 57. 17. Ibid., p. 66. 18. Louis Uchitelle, “Americans have become a Reclusive Lot,” Austin American Statesman (Austin, Texas) (14 May 2000), p. J5. 19. For Jorge M. Valadez’s view and hope for an “ecological consciousness” see his Deliberative Democracy, Political Legitimacy, and Self-Determination in Multicultural Societies (Boulder, Col.: Westview Press, 2001). 20. For a full account of the importance of the qualitative situation in all deliberation see John Dewey, “Qualitative Thought,” LW 5:243–262. 21. Sandra B. Rosenthal, “Mead: Behavior and the Perceived World” in Classical American Pragmatism: Its Contemporary Vitality, ed. Sandra Rosenthal, Carl Hausman, and Douglas Anderson (Urbana: University of Illinois Press, 1999), p. 71. 22. Dorf and Sabel, “A Constitution of Democratic Experimentalism,” p. 284. 23. See Shane Ralston, “Can Pragmatists be Institutionalists? John Dewey Joins the Non-ideal/Ideal Theory Debate,” Human Studies 33 (April 2010): 65–84. 24. Dorf and Sabel, “A Constitution of Democratic Experimentalism,” p. 288. 25. Ibid. 26. Ibid. 27. Ibid. 28. Ibid. 29. Ibid., p. 289. 30. Ibid., p. 286.

REFERENCES Barber, B. 1984. Strong Democracy. Berkeley, Cal.: University of California Press. Benhabib, S. 1996. “Toward a Deliberative Model of Democratic Legitimacy,” in Democracy and Difference: Contesting the Boundaries of the Political, ed. S. Benhabib (Princeton, N.J.: Princeton University Press), pp. 67–94. Bohman, J. 2000. Public Deliberation: Pluralism, Complexity, and Democracy. Cambridge, Mass: MIT Press. Cohen, Joshua. 1996. “Procedure and Substance in Deliberative Democracy,” in Democracy and Difference: Changing Boundaries of the Political, ed. Seyla Benhabib (Princeton, N.J.: Princeton University Press), pp. 95–119.

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Cunningham, F. 2001. Theories of Democracy: A Critical Introduction. London and New York: Routledge. Dryzek, J. S. 2000. Deliberative Democracy and Beyond. New York: Oxford University Press. Habermas, Jürgen. 1996. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Cambridge, Mass.: MIT Press. Misak, C. 2000. Truth, Politics, and Morality: Pragmatism and Deliberation. New York: Routledge. Posner, R. 2003. Law, Pragmatism, and Democracy. Cambridge, Mass.: Harvard University Press. Putnam, H. 1991. “A Reconsideration of Deweyan Democracy,” in Pragmatism in Law and Society, ed. M. Brint (Boulder, Col.: Westview Press), pp. 217–243. Rawls, John. 1993. Political Liberalism. New York: Columbia University Press. Swartz, O., Campbell, K., and Pestana, C. 2009. Neo-pragmatism, Communication, and the Cultivation of Creative Democracy. New York: Peter Lang. Talisse, R. B. 2005. Democracy after Liberalism: Pragmatism and Deliberative Politics. London and New York: Routledge. Young, I. M. 1996. “Communication and the Other: Beyond Deliberative Democracy,” in Democracy and Difference: Contesting the Boundaries of the Political, ed. S. Benhabib (Princeton, N.J.: Princeton University Press), pp. 120–136.

Gregory Fernando Pappas Philosophy Department Texas A & M University 4237 TAMU College Station, Texas 77843-4237 United States

Contemporary Pragmatism Vol. 9, No. 2 (December 2012), 75–92

Editions Rodopi ©2012

Experiments In Democracy Barry Allen

I take a skeptical view of the experimentalism Dorf and Sabel advocate. I discuss doubts of three kinds: Doubt about the idea of “best practices”; doubt about their understanding of scientific experimentation; and doubt about the value of the Constitutional reform they envision. Their program reduces democracy to competitive rituals and managerial predation. The imperative of comparison threatens practices with destruction. “Benchmarking” is a machine to destroy divergence. To compel such comparison with the force of law would be a catastrophe for the ecology of human practices, an enforced monoculturalism that would make democracy infinitely easier to manage at the price of making it infinitely less democratic.

There is no such thing as democracy; there are a number of more or less democratic experiments. – Walter Lippmann We are experiments: let us also want to be them! – Nietzsche I am like a gambler, & love a wild experiment. – Charles Darwin

1. Dewey’s Democratic Experiments According to John Dewey, the recognition “that natural energy can be systematically applied, through experimental observation, to the satisfaction and multiplication of concrete wants” is “the greatest single discovery ever imported into the life of man – save perhaps the discovery of language.”1 All our arts and technologies are built on this principle, and modern science too. Indeed, the success of this science has taught us to replace the value of certainty with a willingness to experiment and be guided by evidence. However, the disappointing fact is that these innovations in the art of knowledge have yet to find their proper response in education, government, and morals. Nothing about the experimental procedures of the sciences precludes their playing a role in moral and political problem-solving. We should pull down the barriers that isolate the laboratory from the life-world, and

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carry “the experimental habit into all matter of practice.” Ways of knowing that are currently “enshrined in scientific practice” should be carried over to “the region of values.”2 Anything touching life is a potential experiment and may be rendered hypothetical and subjected to trials and controlled modification. That is a desirable thing to do because, Dewey says, “the future of democracy” depends on “the spread of the scientific attitude.”3 This enlarged experimentation is not scientism. Science is not epistemologically privileged but historically distinguished, an especially well-refined set of intellectual procedures with a proven track record in problem solving. “The pragmatist sees political deliberation as a continuing enterprise focused on experimentally responding to problems within a context in which both previous deliberative outcomes and new considerations are operative.”4 What justifies the new experiments is not merely the success of modern science and technology, however. It is the patent irrationality of the obstacles. Barriers to experimentation are barriers to intelligence itself, an enforced stupidity that mindlessly follows the past. “What is needed is intelligent examination of the consequences that are actually effected by inherited institutions and customs, in order that there may be intelligent consideration of the ways in which they are to be intelligently modified in behalf of generation of different consequences.” That, Dewey says, “is the significant meaning of transfer of experimental method from the technical field of physical experience to the wider field of human life.”5 This enlarged experimentalism follows from what Dewey says is “a certain logic of method” that can be translated out of laboratory practice and universally applied.6 He explains two principles of the method which he thinks lend themselves to wider application. One is that concepts are to be regarded as tools rather than ideal forms. It is more important to be useful than to be mimetic. Experimental knowledge depends on the choice of operations performed, not an object’s formal suitability for cognition. The second principle is that policies and proposals are to be regarded as hypotheses, and experimentally tested. These hypotheses are “experimental in the sense that they will be entertained subject to constant and wellequipped observation of the consequences ... and subject to ready and flexible revision.”7 Commitments should never lose the sense that everything is potentially a hypothesis, testable and changeable. Once they are “recognized to be hypotheses,” Dewey expects that people’s “tenets and creeds about good and goods” will “lose all pretense of finality, the ultimate source of dogmatism.”8 As Dewey envisions it, generalized experimentation presupposes consensus. Where there is no consensus there can be no useful experiments. That is true in the laboratory sciences no less than in the experimental social engineering Dewey advocates. Consensus on the values of associated living is one of the “laboratory conditions for experimental reform.”9 The presupposition of consensus reminds us that Dewey offers this experimentalism as a liberal middle ground between clinging to the past and romantic revolution.10 While Dewey does not dwell on it, another requirement of systematic hypothetical thought is the performance of tests or trials

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of some kind, and some kind of record. Experimental inquiry is comparative inquiry. We need something, preferably a number, to compare with something else. To obtain this commensurability we suspend everything qualitative that makes us like or dislike things, and think quantitatively, if only for the duration of the experiment, and ultimately for the sake of those suspended qualities. “Reduction of experienced objects to the form of relations, which are neutral as respects qualitative traits, is a prerequisite of ability to regulate the course of change, so that it may terminate in the occurrence of an object having desired qualities.”11 Bracket the endearing qualities; eliminate finalities; be hypothetical, not sentimental; seek control: Do that in a disciplined, systematic way and “it would,” Dewey says, “enable us to state problems in such forms that action could be courageously and intelligently directed to their solution.”12 The cycle of inquiry is not complete and ready to restart until we translate what we have learned from the experiment into the qualitative terms that are the point and value of the whole exercise. “Our moral measures for estimating any existing arrangement or any proposed reform is its effect upon impulses and habits. Does it liberate or suppress, ossify or render flexible, divide or unify interest? Is perception quickened or dulled? Is memory made apt and extensive or narrow and diffusely irrelevant? Is imagination diverted to fantasy and compensatory dreams, or does it add fertility to life? Is thought creative or pushed [to] one side into pedantic specialisms?”13 The knowledge Dewey expects from experiments is therefore ultimately qualitative. The success of an experiment is a lived quality of people’s experience, and not a number to which any other can be compared. We can now sketch the profile of Dewey’s democratic experimentalism. Modern science started something new. The Scientific Revolution is a pivotal event. Knowledge becomes modern. So far, however, this important change has failed to find its proper reflection in morals, education, and government, which need to become more experimental if they want to remain democratic. This enlarged experimentalism is fearlessly hypothetical. Nothing is sacred, no conviction beyond hypothetical challenge and experimental test. We bracket commitment to qualities in conducting the experiments, but the knowledge we expect ultimately concerns qualities and their intensity. This enlarged experimentation is a luxury of consensus. It is a way of reforming and renewing consensus. But it is not a substitute for consensus, and cannot produce consensus, or a normative decision, where consensus does not exist. 2. Experimentation in “A Constitution of Democratic Experimentalism” The solution of Dorf and Sabel to the crisis in American democracy is Constitutional reform.14 They explain a system to interpret the Constitution in terms of what they call directly deliberative polyarchy. It is direct: citizens act, and do not delegate; and act locally, participating in assessing the utility of government services. It is deliberative: decisions come from reason-giving discussion, not

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counting votes. It is polyarchical: there are many jurisdictions, and the deliberations and performance of each contribute to those of others. Legislatures authorize and finance experiments, administrations provide the infrastructure of coordination, and the courts safeguard rights. The connection between directly deliberative polyarchy and experimentation emerges when we follow the money. To obtain public funding, agencies and jurisdictions have to agree to experiment. Congress authorizes and finances experiments in reform, but only on the condition “that those who engage in the experiment publically declare their goals and propose measures of their progress” (288). Local governments or agencies can do anything (constitutional) that they want, make any experiment, and the more the better, because the more everybody stands to learn about any new class of solution that may emerge. They agree with Dewey about the consistency between modern science and democracy, and aspire to follow him in trying to ascertain what democracy can learn “from the methods of public scrutiny and experimentation by which science discerned and adjusted unworkable ideas about the natural world” (286). They too have a plan for the wholesale application of what they call pragmatic discipline, meaning experimental logic, to democracy. They refer to “a common set of experimental methods,” a “generalization of experimental corrigability,” grounded by “the pragmatist account of thought and action as problem solving” (284). This pragmatic logic has the “potential to create a form of problem solving suited to the local diversity and volatility of problems that confound modern democracy, while maintaining the accountability of public officials and government essential to the very idea of constitutional order” (314). The aspiration of the extended experimentalism is to “change the reasons and evidence produced in public debate,” giving rise “to a new politics of detailed debate on the advantages and disadvantages of current choices, given possibilities demonstrated elsewhere,” and creating “a new national politics focused on ... experimentalism and its institutions” (288). So far it all sounds very like Dewey. One difference is the source of their experimentalist principles. Dewey wants to generalize methods of experimentation and attitudes toward knowledge taken over from the laboratory sciences. Dorf and Sabel would have government emulate methods of industrial management that first appear in post-War Japanese manufacturing. On their account, properly experimental agency is identified by three practices which define this managerial methodology. You are experimenting if and only if you are practicing: Benchmarking: making an exact survey of current or promising products and processes to identify those superior to ones presently in use yet within capacity to emulate and eventually surpass. “This benchmarking comparison of actual with potential performance disrupts established expectations of what is feasible” (287). It keeps thought and practice hypothetical, never too settled in a conviction. Simultaneous engineering: continuous adjustment of means to ends. This keeps all ends hypothetical, too. We are never so vested in any end that we cannot experiment with its modification.

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Learning by monitoring: independent collaborators monitor others to detect failures and deception before disastrous consequences. We watch each other’s experiments, constantly trying to learn whatever there is to learn as quickly as possible, and bring it to bear on our experiments. Identifying and combining these methods is a cognitive innovation that has allowed firms to do what standard views used to say could not be done: routinely question current routines. This new firm belongs to “a new class of institutions defined not by the fixed routines to which they are oblivious, but rather by the routines they use for interrogating and altering their routines” (302). The logic of this methodology is, they believe, philosophically pragmatic, because it “systematically provoke[s] doubt, in the pragmatist sense of an urgent suspicion that habitual beliefs are poor guides to current problems” (302). They suggest that a properly experimental polity can be a source of the consensus Dewey thought experiments presuppose. Democratic experimentalism can produce “workable cooperation” even where divisions are entrenched. Disagreement will no longer paralyze or produce compromise but instead trigger authority to test contending programs (314, 342). In making the case for funding, would-be experimenters are required to specify the citizenship goods they pursue, meaning goods important to people’s ability to act as citizens, yet which are unlikely to exist without public support (public education is the paradigm). The means and ends of these are under constant adjustment and must admit of quantification. “The price communities must and should want to pay in this world for the right to experiment is to provide individuals in their own and other jurisdictions with information to judge their performance” (288). The experiment has to issue in a number that others can compare to a standard “best practice.” 3. Doubts About Their Best Practices To receive funding, an agency or jurisdiction does not strictly have to be engaged in experiment, but it does have to do at least as well as what government managers establish as “best practices.” Either do things in the approved “best practice” way, or experiment with a way of your own. The reliability of what Dorf and Sabel call rolling best-practice rules seems important to their version of democratic experiment. “Such rules,” they explain, “require regulated entities to use processes that are at least as effective in achieving the regulatory objective as the best practice identified by the agency.” For example, “the current production method that creates the lowest level of risk is the standard all producers must meet (within a certain grace period), either by adopting those methods or devising equivalents” (350–1). The idea of “best practices” may not be as innocent as they assume.15 The tendency ever since managers started talking this way is for identified “best practices” to become default normative stances. The longer they stand the more entrenched they are, and it can be challenging to justify departure just as an “experiment.” The status quo tends to become the norm. No less troubling is how

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expert panels repeatedly fail to validate “best practices.” When they do manage to identify such practices the results have repeatedly been ineffective and even deleterious. In medicine, contradictory evidence reverses “best practices” so often that within a year typically fifteen percent require change; twenty-three percent are reversed within two years; and half are considered incorrect within five and a half years. The epistemological virtue Dorf and Sabel expect from “rolling best practices” also overlooks the notorious tendency of experts to overreach. Experts are bad at knowing how little they know. They have an inglorious history of overconfidence, confirmation bias, and exaggerated claims for the effectiveness of single factors.16 The idea that “best practices” can be unproblematically identified and used as a neutral standard updates the old assumption that there is an ideal form, a logos of experimental knowledge, a rational norm, canon, logic, or methodology. It ought to be clear by now that the assumption is a mistake. As Isabelle Stengers observes, “it was the error of normative epistemologists to think that they could explicate, in the form of norms to be obeyed, the experimenter’s obligations, as if the nature and limits of the authority the phenomena confer were not in themselves what is at stake in discussions and controversies.”17 There is no methodological canon. It is the contemplative philosophers looking on, and not the experimentalists, who said there has to be such a thing. The rules, methods, and so on that define good experimental practice are constantly changing. The history of knowledge is largely the history of the discovery, modification, enhancement, and preservation of methods of experimentation. Experimentation must be free to change itself, just like democracy, and therefore cannot condone timeless norms. The confidence that best practices can reliably be identified gives Dorf and Sabel’s experimentalism a Baconian flavor. Experiments require little wit, as Bacon said of his method. Anyone, any collection of citizen-administrators, can experiment. All they need is to make their hypothesis explicit and keep a public record. There is no art to these experiments, just doggedness. Methodologically, a Dorfand-Sabel experiment is easy. If there is difficulty, it is political, not epistemological; for example, the difficulty of sustaining allies to see the experiment though. Other advocates of experimental democracy say a good pragmatist treats “political proposals as hypotheses for responding to political problems.”18 As in Dewey, the hope is that this pragmatic method can make democracy open-ended and selfcorrecting. But before we can treat a proposal as a hypothesis we have to have a proposal that is amenable to hypothesis and testing. Arriving at one of those is not easy. What exactly should it mean to “treat a proposal as a hypothesis”? For Dorf and Sable, it means subject it to benchmarking, simultaneous learning, and the norms of rolling best practices. A different answer, from pragmatist political philosopher Robert Talisse, is to cultivate what he calls the virtues of inquiry: honesty, modesty, charity, and integrity. The democratic state has a formative role in developing the intellectual habits citizens need. The state’s role is epistemological, he says, not moral. It instructs people in how to believe, not what

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to believe, “the epistemic traits necessary for proper citizenship.”19 The difference between the what and the how is less than the implied dichotomy of fact and norm suggests. Epistemological norms should be as experimental as the experiments they norm. Innovative and even just tenacious experimentation keeps the repertory of epistemological norms constantly changing. Honesty, modesty, charity, and integrity are fine things in citizens. But it is whimsical to think these virtues will help anyone respond to political problems with creative hypotheses that real experiments might really test. To formulate a hypothesis that is worth testing is a more rare and difficult art than these would-be democratic experimentalists allow. Experimental objectivity is not a method but an achievement, a work of art. It is not easy to create a good hypothesis, and honest, modest, charitable people may be baffled by the problem. Also like Bacon, Dorf and Sabel seem unaware that it takes more than logic to decide what an experiment shows. In the philosophy of science this is called Duhem’s thesis.20 What experiments show is a matter of decision, not demonstration. Responsibility for deciding cannot be foisted on a neutral “logic of experiments.” No observation can be stated without recourse to a language that confers significance on it, and there is never, provably never just one scientifically respectable way to do that. That is the discretion logic leaves to observation and experiment. It is logically impossible to separate what the experiment shows from the decisions of those who carried it out and claim the right to say what it means. We should therefore expect that any controversy surrounding the questions experiments are asked to settle will reemerge in the interpretation of the experimental results. 4. Doubts About Their Experiments Experiments, real experiments, are rather delicate, complex things.21 It is not obvious that modern democracies, with their numbers and pluralism, can seriously follow an experimental ethos. Successful experiments require a patient tolerance for uncertainty that is not easily assumed when we move from the elite experimental specialists (the scientists) to the democratic masses, which tend instead to anxiety in the face of ambiguity. Perhaps there is a tacit acknowledgment of this difficulty in the almost ritualistic quality of the experiments Dorf and Sabel envision. To develop this criticism, three remarks on the limits of their experimentalism: (1) The experiments are about means, not ends. People are free to try whatever they think of, but only as means to an end they are not free to determine. Not if they want funding. Funding requires the pursuit of complex citizenship goods. So there will be no experiments in citizenship and no knowledge of new goods. There is room for experiments in how to provide services but not for what services to provide gay marriages, for example, or safe drug-injection sites. Dorf and Sabel envision lots of agencies trying lots of things and letting each other see the results, so everyone can impartially identify what works best. That happy picture

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assumes we already know the measure of best. But that is the politics. Their “experimentalism” is a new way of accomplishing what western political philosophy has perennially sought to achieve: the elimination of politics in favor of something more reliable.22 (2) Only normal experiments are allowed. Incommensurable experiments are unconstitutional. Everybody knows T. S. Kuhn’s distinction between normal and revolutionary science.23 It seems plausible to extend the terms to normal and revolutionary experiments. I am not suggesting the idea of the “crucial experiment,” which we know is a myth. But some experiments are business as usual, cautiously probing the limits of “best practices.” Other experiments change our idea of what experiments can do. They change the ends of experimentation. They change the questions subjected to experimentation. These are incommensurable, revolutionary experiments. Dorf and Sabel’s constitutional framework compels experiments to be quantitative and commensurable. The trial of hypotheses is only a first phase. Assessment follows, with the compulsive reduction to quantity. I think they assume that for any experiment there are benchmarks, or best practices, and there are others trying to reach the same goals from whom one can learn, that is, copy. Anything incommensurable would be unconstitutional, because incommensurable experiments confute benchmarking, and there is nobody doing something sufficiently comparable for simultaneous learning. What is scientific experiment really all about? We had more than a century of mystified answers from the positivist philosophers of science. Gratefully, we are on the other side of positivism now, and few philosophers of science have a good word for it anymore. To my mind, the best succinct explanation of experimentation in the laboratory sciences comes from Stengers. “The singularity of the achievements proper to the experimental sciences,” she writes, is “the production of situations that authorize them to claim that the subject matter that they address lend themselves to quantitative comparison.” Experimental objectivity is not a method but an achievement, a work of art, “the creation of a rapport authorizing the definition of an object.”24 This creation is “the event that constitutes the experimental invention: the invention of the power to confer on things the power of conferring on the experimenter the power to speak in their name.”25 It is practices such as these that have the primary merit to be recognized as experimental. The question is whether we should really want more of that in politics. There is reason to be cautious. In real experiments, measurement, quantification, and standardized comparison are indispensable. The difficulty experimentation poses for democracy begins, Stengers says, “with the imperative ‘comparison must be possible.’” With it comes “the imposition of a standard that presupposes and enacts silence, the impossibility of objecting or demanding due attention.”26 The imperative of comparison and the imposition of a standard (even a “rolling” standard) destroys divergence. It destroys practices, destroys their differences. “Benchmarking” is a machine to destroy divergence. To compel such comparison with a constitutional force is not democratic; it is predatory. The

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compulsion to experiment would be an ecological catastrophe for practices, an enforced monoculturalism that would make democracy infinitely easier to manage at the price of making it infinitely less democratic. (3) Constitutional experiments are extensive, not intensive, experiments in quantity, not quality. Are people happier, safer, better educated? Such questions are experimentally meaningless until we reduce them to quantities. To insist on the experiments, to compel them constitutionally, is to insist on and compel this quantification, and exclude intensive experimentation with qualities of life, and not mere quantities. Extensive experiments are dedicated to finding the better, determining “best practices.” In ethics and politics such experiments are probably worth less than Dorf and Sabel suggest. Such “normal” experiments presuppose that the most contentious divisions have already been sealed. By contrast, intensive experiments change people. There is no commensurability. They depart from the Constitution, and do not serenely unfold under its guarantees. Such intensive experiments are not those of the laboratory. They are risky trials, but neither the progress nor the outcome can be reduced to a number or compared with a standard “best practice.” An intensive experiment is not controlled, quantitative, commensurable, or executed by agents comfortably wrapped in hypothetical commitment that can be abandoned in a heartbeat. An intensive experiment is more like an experimental innovation under conditions of uncertainty, and requires an attitude anathema to laboratory experiments: robust non-hypothetical commitment. The parties to intensive experiment deliberately expose themselves to experience, changing themselves in ways they cannot foresee, and submitting to the experience as the sole way to experiment with what it is possible for a human being to do and know and be. These are the existential experiments of Nietzsche’s fröliche Wissenschaft, which begins with “the idea that life could be an experiment of the seeker for knowledge” and reserves to the free spirit “the dangerous privilege of being permitted to live experimentally and to offer himself to adventure.”27 If we want a democracy in which people are free to make such experiments, we probably have to forsake Dorf and Sabel’s constitution of democratic experimentalism. 5. Doubts About Their Constitution There is something of the “for its own sake” about Dorf and Sabel’s experimentalism. People are supposed to follow their procedures because doing so is defined as democratic, which is good and sufficient. That may explain the aura of ritual about their experiments. It is important to follow the right formula, the ritual cannot be too exacting, and everybody is watching (“simultaneous engineering”). Involvement in these ritual experiments is valuable for its own sake. Democracy is primarily a procedure, that is, a ritual form. Walter Lippmann, for one, did not like this tendency of democrats to fix on process. “[People] do not desire self-government for its own sake. They desire it for the sake of results. This is why the impulse at self-government is always strongest as a protest against bad conditions.”28

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Dewey was the first great champion of unleashing the methodological innovations of the Scientific Revolution from arbitrary confinement to the laboratory, and advancing them in the fields of education and government. If Dorf and Sabel think well of their method, it cannot be for the same reason. The track record of benefits to humanity from Japanese post-war manufacturing hardly compares to that of the modern scientific revolution. Dorf and Sabel admire their paradigm because it is so efficient, more likely to produce better choices. But only on the condition that experiments are limited to the better choice, meaning better in prevailing terms, better in terms we establish before making the experiment. Dewey’s experiments are proposed in the spirit of, Let us try this together, and see how we like it. We are sure to learn something. Dorf and Sabel’s experiments are: you try your thing, while they try theirs, and managers watch you both struggle to survive. The winner is “best practice.” Their Constitution mandates not just experiments but competition. People have to experiment, or accept what those who have done so establish as “best practice.” Under a Dorf and Sabel regime it seems there would be all these experiments, people trying and learning. But a good part of what they will be trying is trying to quantify their experience. Such quantification is an imposed reform compelled by the demand for methodological conformity. It is unlikely that there is anything advantageous to democracy accomplished by the compulsion to quantify, which is an insult to the integrity of practices. A practice that may not have measured itself is compelled into quantification (to prove its legitimacy) as the only recourse against the imposition of mandated “best practices” arising from someone else’s experiment. For Dewey experimentation is a luxury of consensus. It is a way of working with and on consensus, a way for consensus to keep growing and not degenerate or become static. But it is not a substitute for consensus, and cannot produce consensus where it does not exist. Dorf and Sabel seem to think that experimentalism can be a force to create consensus. They say that “this form of deliberation ... neither depends on consensus nor results in uniformity of view” (314); that “directly deliberative polyarchy ... does not presume consensus” (336); that it “can begin to take shape spontaneously in response to current difficulties” (that is, dissensus), and can establish “forms of accountability and consensus” (337), presumably where they are not already available. It seems to me that these assertions can be true only if they assume that the logic of experimentation, the method of benchmarking and the rest, has some normative stature that is independent of political controversy, or whatever divides consensus. The assumption seems to harken back to positivism, to the belief in a “logic of discovery,” a “scientific method,” and so on. Yet, as I have argued, a good hypothesis, a good experiment, or what experiments show is not determined by epistemological norms that can be codified. Norms and hypotheses are tested together or not at all. The mistake in thinking there is a logic of experiments is that all the invention, all the art, all the difficulty disappears, and experiments are misprisioned in a ritual form.

Contemporary Pragmatism Editions Rodopi Vol. 9, No. 2 (December 2012), 75–92 ©2012 The worst thing about their experimentalism is the constitutionalism. The constitutional framework compels the experiments to be quantitative, and limits experiments to the extensive and comparable. It ensures that the Constitution is not experimented with, and turns all experimentation inward, undisturbed by the outside, by those who do not share this Constitution. Some people say, “We want to try this.” Dorf and Sabel respond, as it were, “Ok, but how will you know if it works?” To worry about that question is to condemn experimentation to normality, and make it unlikely to discover anything new about what can work in democratic politics, or what “working” might mean. It is fine when people have the liberty and wisdom to experiment with the terms of their political society. But to demand that everybody experiment is predatory. “Experiment, yes. You have to, and furthermore, here are the rules.” We cannot experiment with the rules. They are founded, grounded, legitimated, or something, by pragmatic rationality, a pragmatic theory of knowledge, something. I do not think philosophical theory has anything with which to comfort Dorf and Sabel in the specific practices they have chosen to canonize. Most of what makes modern experimental science great was the innovation of experimental methods, not the gradual realization of a pragmatic logic obscured by superstition. Galileo is an inventor of methods. All the great experimentalists are. They invent methods of knowing, and their methods, their experiments, are untenable, incommensurable, abnormal when they happened and for a time thereafter. Once you arrange the rules so that only normal, commensurable, quantitative experiments are constitutional, you compel incommensurable experiments to invisibility and deprive their authors of their freedom of inquiry. Experiments cannot be constitutionalized as Dorf and Sabel propose. A culture of experiments has to be free to experiment with the experiments, otherwise they lose their value as experiments, and experimentation becomes a ritual, blurring the line experimentalists worked so hard, at personal cost, to draw between the magic of ritual and the art of experiment. 6. A New Experiment in Democracy To me, Dewey is one of those who make the twentieth century seem distant rather than close. His hopes and convictions belong more to the past than to a future I can imagine. That is especially true of his expectations for an enlarged experimentalism. Dewey depends on positivist-influenced descriptions of the sciences. He believes there is a unity of science, and an experimental methodology that can be extrapolated and more widely and consistently applied.29 Since his time, thought concerning every aspect of the sciences has changed, partly by a movement of selfcritique from within logical positivism (Quine, Sellars, Kuhn, Feyerabend), but more due to the rise of Science Studies, and especially the work of Bruno Latour. For Latour, experimentation implies movement, passage though a trial that changes everything interacting under its auspices, and leaves a trace from which a lesson is drawn. He characterizes experimentation as “an intermediary between

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knowledge and ignorance. It defines itself not by the knowledge that is available at the start, but by the quality of the learning curve that made it possible to pass through a trial and know a little more about it.”30 That makes experiment an “event,” a word Latour uses in a philosophical sense adapted from Whitehead. What is event-like about an event is its motion, movement, change. An event is a happening, but the happening happens in an interval of continuous change. Every experiment is at once the ancestor of future experiments and the culmination of its antecedents. What is decisive in the advance of scientific knowledge is never the experiment in isolation, but the difference between experiments that traces the learning curve and expresses the cognitive quality of the cumulative experience. The motive for this perhaps unwonted terminology in the discussion of experiments is dissatisfaction with the notion of “discovery,” which, from Latour’s Science Studies perspective, is ruined by an implicit dichotomy between nature and society. Society is already constituted, the experiment is performed, nature is discovered, revealed as it always was. The only difference between Society before and after is the pure knowledge acquired, which may then be applied to a social problem. Latour’s objection to this picture is not to the obvious Platonism that might draw the ire of a pragmatist critic like Rorty. Latour’s objection is more empirical, less dialectical, and harder to dismiss as merely argumentative. Good experiments change everything they interact with. None of the inputs are the same before and after. That goes for the social collective no less than for nonhuman things, and for things in nature no less than artifacts. “Society finds itself at the end of collective experimentation, not at the beginning, not all ready-made, not already there.”31 To describe an experiment as an event implies the historicity of all its factors, not just the human beings and their lab. Historicity means having been changed by effects peculiar to the passage of time, which does not merely pass but transforms. Nothing is the same before and after the experiment – not nature, not society, not the experimenters, or their readers. Nonhuman things, like neutrons or lactic acid ferment, have a history too, just like people, and no less subject to multiple interpretations and evolving complexity. For Latour, this historicity of nonhumans “appears to be, to my eyes at least, the totally unexpected discovery collectively made over two decades by historians and sociologists of science.”32 The implications are many. One, relevant to our theme, is an unwonted change in our understanding of politics and the political. These include, have to include, nonhumans. A democratic constitution should make careful, explicit provision for nonhuman no less than human agency. “Half our politics is constructed in science and technology,” Latour writes; “the other half of Nature is constructed in societies. Let us patch the two back together and the political task can begin again.”33 Plato likened the ruler to a weaver working with the weft of reason and the warp of passion. Governments today require skill in crossing the woof of law with the warp of science and technology. Politics can no longer be limited to the polis, to what happens behind its walls, or to humans and their words.34 Political society has come to resemble what Stengers and Latour call cosmopolitics: “We live in a hybrid

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world made up at once of gods, people, stars, electrons, nuclear plants, and markets, and it is our duty to turn it into either an ‘unruly shambles’ or an ‘ordered whole,’ a cosmos.”35 Political scientist Jane Bennett also discusses the overlap of human and nonhuman beings. “Theories of democracy that assume a world of active subjects and passive objects begin to appear as thin descriptions at a time when the interactions between human, viral, animal, and technological bodies are becoming more and more intense.”36 Everyone is a bit nonhuman, and things are players too. People are not locked-in agents whose minds and physical abilities are fixed quantities. A human body is not a finished structure but is continually renegotiating its limits, components, data stores, and interfaces. Minds are no different, constantly restructured with new equipment literally incorporated into thought and action. 37 Look close enough at any case of “social” or “political” power, and the agency turns out to be a confederation of people, tools, microbes, minerals, sounds, all kinds material artifacts and natural agencies. There is nothing whimsical about nonhuman agency. It is cool realism. People have practically no intentionality, and certainly nothing adequate to politically significant effects these days, without an ensemble of nonhuman confederates. What is more, among the most significant political challenges we now confront arise largely through the complex intertwining of human and nonhuman agency. Such are our ecological crises. Latour poses the interesting question why the ecological crisis is historically important.38 He thinks the reason is that it confronts us with the starkest possible case for the need to get past the dichotomy between nature (physical relations among things) and society (political relations among people). The dichotomy runs thought about politics no less than about nature. The ecological crisis compels us to acknowledge the geologically new fact that, in Stengers’ terms, “there is hardly an ecological situation on earth where the values attributed by humans to different ‘products’ of nature haven’t already contributed to the construction of relationships among nonhuman living beings.”39 Before ecological crises captured our attention, we were captivated by the image of nature as a field of pure discovery and society as a field of pure convention and norm. The only contract we thought we needed was among ourselves, a social contract. “We imagined,” in Michel Serres’s words, “that we would be able to live and think among ourselves, while things around us obediently slumbered, crushed by our hold on them.”40 Placid indifference to the historicity of nature makes sense only on the assumption that there is a wide, free environment, equipped with reserves that can absorb any damage. That was never really true. There are numerous examples of ecological catastrophe befalling human communities before modern times.41 But it is evidently not true now. A purely social contract is no good any more. It cannot address the problem of justice that a social contract was intended to address. The most useful thing the sciences can do for democracy is to work on the impediments to nonhuman speech. This is what they do best, as seen in the traditions of laboratory experimentation. Pasteur acts so that the yeast acts alone.

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“Pasteur authorizes the yeast to authorize him to speak in its name.”42 Laboratory experimentalism is unmatched in the democratic art of inventing solutions to the impediments that prevent nonhumans from speaking. That does not mean giving more voice to experts. It means giving more importance to what experts are supposed to be expert about. It means citizens and legislators caring more about the quality of expert representation, and paying more attention to the nonhuman speech that the sciences detect. That implies the need for a more realistic understanding of the sciences in the halls of legislation, which relates to a second insight that ecological crises have made unavoidable: awareness of the uncertainty that reigns in the sciences. We have to set aside the idea that the sciences can objectively and efficiently assess risk and provide technical guidance to back up political decisions and optimize our options. “Our notions of politics have been thwarted for too long by an absurdly unrealistic epistemology. Accurate facts are hard to come by, and the harder they are, the more they entail some costly equipment, a longer set of mediations, more delicate proofs.” This should not be the sciences’ dirty little secret. It should be publically proclaimed and become common sense. Latour wants to see an enhancement of “the representational technology of parliamentary life.” “What’s needed is to be able to bring inside the assemblies divisive issues with their long retinue of complicated proof-giving equipment.”43 Rather than reducing democracy to the competitive rituals of Dorf and Sable, it seems to me more important to remain experimental in our practice of democracy. That means to remain capable of change. Instead of making the old democracy experimental, we might experiment with extending a new democracy to nonhumans. The thought that nonhumans matter in a way that obliges us to represent them may be unsettling. I should be clear, and say there is nothing that nonhuman things want to say and for which they require a translator. Their utterance is not translated but constructed. We bring it about that nonhumans speak. Without human artifice the speech would not exist. We set up an apparatus, rig a prosthesis, but the effect is to make it the case that a nonhuman speaks. We make the prosthesis, but what comes out is not a proposition we have made. It is one of theirs, a nonhuman utterance. Such utterance is speech without a speech act, non-illocutionary, bare utterance. What do nonhumans say? They say their composition and tendency; their concentration, dispersal, intensity, and extension; their alliance with others, and hint at retaliation if unaccommodated. These utterances would not occur if we did not construct their prostheses. But if the experiment is successful, the result is a nonhuman utterance. The speech of nonhumans is nonhuman speech, and not a melodramatic imitation of human speech pathetically misattributed to nonhuman things.44 Latour proposes a generalization of experiments much as Dewey wanted to do, though the details are different due to Latour’s infinitely more nuanced understanding of experimentation. “Public life has striven up to now to imitate Science and to await the salvation of reason: Why would it not try to imitate the sciences a bit by borrowing the experimentation that is incontestably their greatest

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invention?”45 The contrast between “Science” and “the sciences” epitomizes Latour’s criticism of the positivist thesis of the Unity of Science. The sciences are many and different, not unified and one. There are as many methods of experimentation as there are laboratories, and methods and problems are changing all the time. The Unity of Science, the consistent promise of positivism from Comte to Neurath, is obviously, massively unavailing. The more science we do the more sciences we have. What links them is not a common method, but a genealogy, a history, an evolution from older methods and ways of knowing. Modern thought assures us that there is an objective nature we cannot alter and a social community whose norms are conventional and changeable. But we do not know in advance what is nature and what is society. Instead, we find this out through experimentation. The boundaries of norm and fact are constantly being negotiated as an outcome of collective experimentation with each other and with nonhuman things. We cannot expect certainty in deciding what to include or exclude in our “social” contract, which should therefore never be irrevocable. Each determination must be experimental, with the possible result that we do not want to live without whatever was excluded in the previous cycle. “All collectives, like Frankenstein’s creature, are born deformed; all appear barbarous in others’ eyes: only the trajectory of the experiment gives them a civil form… By comparing the relative states of the same collective at two successive moments, we thus succeed in characterizing its virtue, but without falling back on definitive knowledge or moral transcendence.”46 This virtue is specifically democratic because it lies not in what political society is but in what it has become and remains capable of becoming. According to a thesis of Derrida, democracy is precisely that political society which never is but is to-come. “The originality of democracy is perhaps this. Any democracy is always influenced by the recognition of not being adequate to its model (this is not inscribed in the essence of the other ‘regimes’ and that is why democracy is not really the name for a type of regime), and so historicity, infinite (and essentially aporetic) perfectibility, and the original link to a promise make it something tocome.”47 My argument has been that the democracy to come will have to experiment with constitutional provision for non-human agency. To neglect such experiments, and try to govern with a merely social contract, must irreversibly erode the ecological preconditions of any democracy at all.

NOTES 1. John Dewey, “Intelligence and Morals” (1908), in Political Writings, ed. Debra Morris and Ian Shapiro (Indianapolis: Hackett Publishing Company, 1993), p. 68. 2. Dewey, The Quest for Certainty, Later Works, vol. 4, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1988), pp. 219, 220. 3. Dewey, “Science and Free Culture” (1939) in Political Writings, p. 57. 4. Robert B. Talisse, Democracy After Liberalism: Pragmatism and Deliberative

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Politics (London and New York: Routledge, 2005), p. 108, also p. 107. 5. Dewey, Quest for Certainty, p. 218. 6. Dewey, The Public and its Problems (1927), in Political Writings, p. 186. 7. Ibid. 8. Dewey, Quest for Certainty, p. 221. 9. Robert B. Westbrook, John Dewey and American Philosophy (Ithaca, N.Y.: Cornell University Press, 1991), p. 249. 10. Colin Koopman, Pragmatism as Transition: Historicity and Hope in James, Dewey, and Rorty (New York: Columbia University Press, 2009), p. 166. 11. John Dewey, Human Nature and Conduct (1922; New York: Modern Library, 1930), p. 84. 12. Ibid., p. 13. 13. Ibid., p. 270. 14. Michael C. Dorf and Charles F. Sabel, “A Constitution of Democratic Experimentalism,” Columbia Law Review 98:2 (1998), pp. 267–473. References are parenthetically embedded. 15. Jerome Groopman, “Health Care: Who Knows Best?” New York Review of Books 57:2 (11 February 2010), pp. 12–15. 16. Brian Martin, ed., Confronting the Experts (Albany: State University of New York Press, 1996). 17. Isabelle Stengers, Cosmopolitics I, trans. Robert Bononno (2003; Minneapolis: University of Minnesota Press, 2010), p. 51. 18. Talisse, Democracy, 115. 19. Talisse, Democracy, 123. 20. Pierre Duhem, The Aim and Structure of Physical Theory, trans. Philip P. Weiner (1906; Princeton, N.J.: Princeton University Press, 1954). See also W. V. Quine, “Two Dogmas of Empiricism,” From a Logical Point of View, 2nd edn (New York: Harper and Row, 1961). 21. See George Johnson, The Ten Most Beautiful Experiments (New York: Vintage, 2008), and for a more philosophical treatment, Ian Hacking, Representing and Intervening (Cambridge, UK: Cambridge University Press, 1983). 22. Jacques Rancière, Disagreement: Politics and Philosophy, trans. Julie Rose (1995; Minneapolis: University of Minnesota Press, 1999). 23. T. S. Kuhn, The Structure of Scientific Revolutions, 2nd edn (Chicago: University of Chicago Press, 1970). 24. Isabelle Stengers, “Comparison as a Matter of Concern,” Common Knowledge 17:1 (2011), pp. 49, 50. 25. Isabelle Stengers, The Invention of Modern Science, trans. Daniel W. Smith (1993; Minneapolis: University of Minnesota Press, 2000), p. 89. 26. Stengers, “Comparison,” p. 58. 27. Friedrich Nietzsche, The Gay Science, trans. Walter Kaufmann (New York: Vintage, 1974), sect. 324; and Human, All Too Human, trans. Marion Faber (Lincoln: University of Nebraska Press, 1984), preface, sect. 4. 28. Walter Lippmann, Public Opinion (1922; New York: Simon and Schuster, 1997), 193; cited in Noortje Marres, “Issues Spark a Public into Being,” in Making Things Public, ed. Bruno Latour and Peter Weibel (Cambridge, Mass.: MIT Press, 2005), p. 217. 29. Dewey’s commitment both to a positivist “unity of science” and a dichotomy of human and nonhuman is evident in the closing words of his contribution to Otto Neurath’s

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Encyclopedia of Unified Science: “The widest gap in knowledge is that which exists between humanistic and nonhumanistic subjects. The breech will disappear, the gap be filled, and science manifested as an operating unity in fact and not merely in idea, when the conclusions of impersonal nonhumanistic science are employed in guiding the course of distinctively human behavior.” Theory of Valuation, International Encyclopedia of Unified Science, ed. Otto Neurath, vol. 2, no. 4 (1939; Chicago: University of Chicago Press, 1969), p. 66. 30. Bruno Latour, Politics of Nature: How to Bring the Sciences into Democracy, trans. Catherine Porter (Cambridge, Mass.: Harvard University Press, 2004), pp. 195–6. 31. Latour, Politics of Nature, p. 225. 32. Bruno Latour, “On the Partial Existence of Existing and Nonexisting Objects,” in Biographies of Scientific Objects, ed. Lorraine Daston (Chicago: University of Chicago Press, 2000), p. 265. 33. Bruno Latour, We Have Never Been Modern, trans. Catherine Porter (Cambridge, Mass.: Harvard University Press, 1993), p. 144. 34. See Michel Serres, The Natural Contract, trans. Elizabeth MacArthur and William Paulson (1990; Ann Arbor: University of Michigan Press, 1995), chap. 2, “Of Governing.” 35. Bruno Latour, Pandora’s Hope: Essays on the Reality of Science Studies (Cambridge, Mass.: Harvard University Press, 1999), p. 16. See also Latour, On the Modern Cult of the Factish Gods (Durham, N.C.: Duke University Press, 2010). 36. Jane Bennett, Vibrant Matter: A Political Ecology of Things (Durham, N.C.: Duke University Press, 2010), 108. Another good source on human-nonhuman interaction is Manuel DeLanda, A Thousand Years of Nonlinear History (New York: Zone Books, 2000). 37. Andy Clark, Supersizing the Mind: Embodiment, Action, and Cognitive Extension (New York: Oxford University Press, 2008), pp. 14, 30, 31, 42. 38. Latour, Politics of Nature, p. 58. 39. Stengers, Cosmopolitics, p. 33. See also Michel Serres and Bruno Latour, Conversations on Science, Culture, and Time, trans. Roxanne Lapidus (Ann Arbor: University of Michigan Press, 2006). For a detailed example of how profoundly human activity can blur the line between nature and artifact, referring in this case to the Columbia River, see Richard White, The Organic Machine (New York: Hill and Wang, 1995). 40. Serres, The Natural Contract, p. 39. 41. See J. Donald Hughes, Ecology in Ancient Civilizations (Albuquerque: University of New Mexico Press, 1975); and Sing C. Chew, World Ecological Degradation: Accumulation, Urbanization, and Deforestation 3000 BC – AD 2000 (Walnut Creek, Cal.: AltaMira Press, 2001). 42. Latour, Pandora’s Hope, p. 132. 43. Bruno Latour, “From Realpolitik to Dingpolitik,” Making Things Public, pp. 21–22, 34. 44. For more on nonhuman speech, see my paper, “The Cultural Politics of Nonhuman Things,” Contemporary Pragmatism 8:1 (June 2011), pp. 3–19. 45. Latour, Politics of Nature, p. 195. 46. Ibid., p. 199. 47. Jacques Derrida, Paper Machine, trans. Rachel Bowlby (2001; Stanford, Cal.: Stanford University Press, 2005), p. 139.

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BARRY ALLEN

Contemporary Pragmatism Vol. 9, No. 2 (December 2012), 93–116

Editions Rodopi ©2012

Dewey and Hayek on Democratic Experimentalism Shane J. Ralston

Michael Dorf and Charles Sabel invoke John Dewey’s “pragmatist account of thought and action” as the “backdrop” for their theory of democratic experimentalism, an approach to governance emphasizing judicially monitored local decision making within a system of decentralized administrative authority. Little credit for influence is given to the Austrian economist Friedrich Hayek and his classic liberal ideas. Indeed, Sabel has been highly critical of Hayek’s ideas. Yet, an argument can be made that (i) democratic experimentalism is at least loosely Hayekian and (ii) a combined Deweyan-Hayekian analysis of Dorf and Sabel’s theory reveals some critical mistakes. Dewey and Hayek’s ideas are more compatible than most democratic theorists and political philosophers will admit, allowing the creation and evaluation of democratic experiments within a DeweyanHayekian theoretical framework, as well as extending the framework to other areas of political inquiry.

...for Dewey, it [democracy] was a method for identifying and correcting through public debate and action the unintended consequences of coordination among private actors. He was concerned to know what democracy, so understood, could learn from the methods of public scrutiny and experimentation by which science discerned and adjusted unworkable ideas about the natural world. – Michael Dorf and Charles Sabel (1998, 286) Spontaneous orders are not necessarily complex, but unlike deliberate human arrangements, they may achieve any degree of complexity. One of our main contentions will be that very complex orders, comprising more particular facts than any brain could ascertain or manipulate, can be brought about only through forces inducing the formation of spontaneous orders. – Friedrich Hayek (1973, 38)

Michael Dorf and Charles Sabel (1998) invoke John Dewey’s “pragmatist account of thought and action” as the “backdrop” for their theory of democratic experimentalism, an approach to governance emphasizing judicially monitored local decision making within a system of decentralized administrative authority

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(284).1 Little credit for influence is given to the Austrian economist Friedrich Hayek and his classic liberal ideas. Indeed, Sabel has been highly critical of Hayek’s ideas. Yet an argument can be made that democratic experimentalism is at least loosely Hayekian. Hayek’s notion of a spontaneous order bears some resemblance to what Dorf, Sabel and others call a democratic experiment. Minimizing democratic experimentalism’s debt to Hayek may seem unsurprising given the tendency among democratic theorists to bifurcate the forum and the market, preferring deliberation to catallaxy.2 However, Dorf and Sabel gladly embrace the model of flexible economic entrepreneurship in their theory of democratic experimentalism. By preferring Dewey to Hayek, they make two mistakes though. First, they ignore a key lesson of Hayek’s epistemology, namely, that implicit knowledge lends invaluable support to the efficacy of decentralized information systems. Second, they underestimate the threat of strategic action to the dialogic process of rule-making. Institutions other than markets can spontaneously evolve once a legal framework is in place, thereafter structuring experimental problem solving and democratic decision making in a Deweyan-Hayekian spirit, that is, by choosing means in the absence of predetermined ends or preferred end-states. One implication of my analysis is that Dewey’s and Hayek’s ideas are more compatible than most democratic theorists and political philosophers will admit. Evidence of this compatibility opens the door for creating and evaluating democratic experiments within a Deweyan-Hayekian theoretical framework, as well as extending the framework to other areas of political inquiry. The article is organized into five sections. In the next section, I examine the few sympathetic treatments of Hayek’s work by liberal political theorists as well as the sparse literature comparing Dewey and Hayek’s ideas. The following section outlines Dorf and Sabel’s Deweyan argument for democratic experimentalism. In the third section, I present Hayek’s theory of spontaneous order and explain how it differs from Dorf and Sabel’s model of democratic-experimentalist governance. The fourth section argues that Sabel and Dorf’s decision to favor Dewey over Hayek proves problematic insofar as it blocks a robust understanding of democratic experimentalism. Finally, the article concludes by considering the implications of the previous analysis and argument as they relate to two key points: one, Dewey and Hayek share more common intellectual ground than most scholars concede; and, two, constructing a Deweyan-Hayekian framework promises to clarify not only the concept and operation of democratic experimentalism but also the theory and practice of a multitude of other areas in political studies ripe for inquiry. 1. Dewey and Hayek One possible objection to my argument is that the philosophical approaches of Dewey and Hayek are prima facie incompatible. Dewey was a guild socialist, liberal democrat, advocate of progressive education and a staunch critic of

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laissez-faire capitalism. Hayek was a free marketer, right-libertarian, defender of individual freedom and a fierce opponent of centralized economic planning and socialism. Though Dewey argued for a new ideal of American individualism in Individualism Old and New (1930), his vision was decidedly more collectivist than Hayek’s. Dewey diagnosed America’s consumerist culture, rampant economic exploitation and the disjuncture between individuals and groups as leading causes of the Great Depression. Hayek, on the other hand, identified the rising cost of labor and commodities, which had made business investment unprofitable, as critical antecedents to the economic downturn. Dewey’s solution was a new form of socialism in which industry would become democratically managed and worker owned, while Hayek’s was an austerity plan to lower wages and prices in order to return the market to healthy state. Despite the perceived incompatibility between Hayek’s and Dewey’s approaches, two liberal political theorists have sought to usher Hayek into the liberal fold. Andrew Gamble (1996) indicates how thinkers on the political Left overlook Hayek’s ideas: Hayek is one of the most important thinkers of the twentieth century, but there has always been a tendency for intellectuals on the left to neglect or belittle his achievement. He has been frequently dismissed as a rightwing ideologue, whose energies were spent in a crusade against socialism and an attempt to revive an obsolete creed, economic liberalism. His arguments have often been regarded as exaggerated and polemical. (46) According to Gamble, “intellectuals on the left” can learn much from Hayek if they are willing to set aside their initial prejudices. With other members of the Austrian School of Economics (including Israel Kirzner, Ludwig Lachmann, Ludwig von Mises, and Murray Rothbard), he is committed to classical liberal view that individual economic liberty enlarges while government power shrinks. Unlike some contemporary right-libertarians, though, he envisioned a more generous “steering role for governments,” not restricted to a night-watchman state, but encompassing “responsibilities in education, health and many other fields, as well as ensuring a minimum standard income” (51). Similar to Gamble, Stephen Macedo (1999) insists that Hayek’s contribution to liberal society is underappreciated by Left-leaning intellectuals. “Hayek emerges as a figure squarely in the liberal tradition,” Macedo notes, “when one considers his confidence in the power of public ideas, his commitment to an ever wider extension of liberal institutions, and his faith in human progress” (289). For Hayek, social progress is evolutionary. Individual values, group norms, moral traditions and political institutions arise out of localized human interaction and distributed systems of knowledge (especially economic exchange or catallaxy), enabling societies to successfully adapt to changing social, cultural and economic conditions. More recent right-libertarians appeal to the value of market efficiency and individual initiative divorced from

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morality and collective concerns. In contrast, “Hayek’s vision of the free society is infused by an implicit set of moral standards, judgments about many aspects of the social system as a whole” (297). While Gamble and Macedo draw Hayek into the liberal fold, two other scholars explicitly relate Hayek’s and Dewey’s ideas, thereby countering the perceived incompatibility of their philosophical views. Robert Mulligan (2006) highlights the shared features of Hayek’s radical subjectivism and Dewey’s transactional epistemology as they affect distributed or networked systems of human interaction. Transaction integrates rigid dualistic categories, such as subject and object (or subjective knowledge and objective information), into functionally related wholes. According to neoclassical economics, subjective (i.e., individual preference-based) knowledge is more real than objective (i.e., scientific fact-based) information, since the former cannot be disputed (de gustibus non est disputandum), while the latter is either true or false. According to Hayek’s radical subjectivism, the assumption that “knowledge is subjective” does not privilege its ontological status relative to informational networks, for “the subject-object distinction is only a tentative, ad hoc construct,” not a fixed dualism (66). In this way, Hayek’s model of distributed knowledge (what he calls a ‘spontaneous order’) imitates Dewey’s transactional epistemology, integrating subjective preferences and objective information into a thorough understanding of reflective action: “Subjectivism in the social sciences is a technical approach which emphasizes the subjective bases for human behavior, but clearly does not deny the reality of objective characteristics or phenomena” (68). Colin Koopman (2009) takes a slightly different tack, seeing Hayek and Dewey as political theorists with complementary insights into the relationship between morality and markets. According to Koopman, “[t]he time is ripe for Deweyans to take another look at Hayek. That Hayek has been inexplicably neglected by pragmatists for so long is perhaps due to his being neglected more generally by the overwhelming majority of liberal democratic philosophers ... Deweyan ethical democrats might benefit from certain strategies or techniques developed in the context of Hayekian liberalism” (152). One of these Hayekian strategies that Deweyans might find beneficial, Koopman acknowledges, is conceiving political rationality as an uncertain and practical process of information exchange. It is marked by skepticism that any human-designed system (or rational order) can express the evolving complexity of a plurality of agents acting in a decentralized fashion. Koopman speculates that “Dewey would have found particularly attractive Hayek’s reproach of attempts to replace bottom-up cultural evolution with top-down rule of expert planning” (156). In other words, Dewey would have been attracted to Hayek’s notion of a spontaneous order, or a naturally evolving system resulting from the unplanned interaction of multiple actors rather than the willful design of a central planner.

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2. Deweyan Democratic Experimentalism Dorf and Sabel’s (1998) law review article “A Constitution of Democratic Experimentalism” offers a visionary model of decentralized administrative decision making. Institutions of governance should no longer resemble Max Weber’s (1978) description of a bureaucratic organization as highly formalized, hierarchically structured, rationally managed and inefficient by right of its own purportedly efficient mechanisms (956–958). Instead, governing structures ought to embody the value of localized knowledge, citizen participation, regional experimentation, distributed methods of information gathering, shared systems of monitoring and problem solving as well as minimal rules and regulatory structures for coordinating the whole. The authors discuss how the early United States Forest Service exemplified democratic experimentalism, “for its ability to adjust complex policy goals to extraordinarily diverse local settings, largely through controlling, and learning from, the exercise of discretion by its lowest level operating agents, the forest rangers” (364). While the first Chief of the Forest Service, Gifford Pinchot, was certainly a pioneer of democratic experimentalism, at the approach’s core are the ideas of at least three other major figures: (i) James Madison, specifically his notion that government power should be limited and decentralized, (ii) Franklin Delano Roosevelt, particularly his New Deal federalism linking Congressional delegations of authority to a web of regulatory agencies, as well as courts to adjudicate conflicts between agencies and citizens, and (iii) John Dewey, whose pragmatism infuses all cooperative human activity and thinking with a concern for resolving shared problems (267– 268, 284–286). Deweyan pragmatism is a useful “backdrop” for Dorf and Sabel’s (1998) “design” because of its multiple emphases on flexible problem solving, the interchangeability of means and ends, anti-foundationalism, the irreducibly social quality of the doubt-inquiry process, and democracy as an experimental method. Pragmatist aesthetic theory factors into the democratic experimentalist framework to the same degree as scientific inquiry: “Art epitomized for Dewey the essentials of pragmatist investigation, because in art means become ends, and the relation between them commands attention because of this immediacy” (285). The doubt-inquiry process is initiated by a sudden hitch, felt difficulty or immediate shock that prompts subsequent uncertainty, investigation and effort to restore harmony to the situation: “Seen as localized breakdowns in our expectations,” Dorf and Sabel note that, “doubt spurs inquiry into remedial action and reforms conceptions” (285). As resources guiding inquiry, all final ends, ultimate values and fixed foundations convert into “ends-in-view,” proximate goals and tentative suggestions for enriching further experience. Similar to Dewey, inquiry for Dorf and Sabel has an undeniably social and local quality to it: “Above all, an experimentalist regime gives locales substantial latitude in defining problems for themselves” (322). Inquiry undercuts the dichotomy between public and private, coordinating thought-in-action through

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sustained cooperative problem solving. Rather than a discrete set of institutional arrangements, democracy then signifies “a method for identifying and correcting through public debate and action the unintended consequences of coordination among private actors” (286). Dorf and Sabel take the lessons of pragmatism combined with the innovative practices of private businesses (particularly Japanese firms committed to programmatic quality control, such as Total Quality Management) to imply that networks of local decision-making units, each experimenting and pooling information with each other, are better than a centralized legislature delegating rule-making authority to federal agencies, subject to review by administrative courts. The result is “a series of innovations by private firms [such as “benchmarking, simultaneous engineering and error detection methods”] that suggest institutional devices for applying the basic principles of pragmatism to the master problem of organizing decentralized, collaborative design and development under conditions of volatility and diversity” (286, 301). In these decentralized networks, knowledge is localized; systemic errors remedied; traditional methods questioned; and complex problems resolved through a process of careful “benchmarking: an exacting survey of current of promising products and processes which identifies those products and processes superior to those the company presently uses, yet are within its capacity to emulate and eventually surpass” (287). Democratic experimentalism takes seriously Justice Louis Brandeis’s call for states to become “laboratories of democracy” (an alternative to strong federalism) insofar as governmental units smaller than the nation-state (states, counties, and municipalities) are tasked to experiment with novel policies and programs in the absence of a strong centralized authority.3 However, decentralization of authority does not yield to a localism of chaotic interactions and exploitation by power elites. According to Dorf (1995), courts and legislatures evaluate experimenters’ performance by reference to their own benchmarked standards: “Decentralization of this kind, therefore, far from delivering the vulnerable into the lawless preserves of the local oligarchs, would expose local activity to scrutiny more informed and thus more searching than possible in the old administrative state; and the courts in serving justice would increase efficiency by obliging jurisdictions to learn from one another” (33). Since “democratic experimentalism can clarify the relation of means and ends,” the judiciary can walk a more moderate path between zealous activism and hands-off restraint (395). Democratic experimentalism also improves the executive branch. Rather than exerting centralized control over smaller jurisdictions, agency authority to monitor devolves to decentralized decisionmaking units. Each improves its functioning through a process Dorf and Sabel (1998) term “learning-by-monitoring” (a loose analog to Dewey’s notion of “learning-by-doing”) (309; Dorf 2006). Learning-by-monitoring involves the search and discovery of high-quality policies and programs by evaluation of the widest range of possible alternatives, each emerging from the problematization, deliberation, and experimentation. This discovery procedure manifests in both

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the business of private firms and the politics of democratic governance. In private firms, “[t]he counterintuitive result [of learning-by-monitoring] is that increasing the range of design alternatives considered at the start of a product cycle speeds selection of one, and increases the quality of choice” (Dorf and Sabel 1998, 303). In democratic governance, “democratic experimentalism radicalizes pragmatism in politics as learning by monitoring radicalizes it… in the experience of partial alternatives to the regnant order the possibility of seeing the familiar as problematic and the possibility of reflecting on, extending, and choosing among the problematic experiences” (Sabel 1995, 33). Examples of democratic experiments that exhibit learning-by-monitoring include Chicago’s community police program (whereby neighborhood watches, activists and police monitor crime and collaborate on programmatic development as new problems emerge) and the European Union’s regime of occupational health and safety rules (whereby member-states have an incentive to ensure compliance because the results – greater worker productivity, product quality, and industry reputation – improve Gross National Product) (Sabel 1995, 35). Democratic experimentalism is not intended to produce a regulatory “race toward the bottom” (or deregulation for competitive advantage), which commonly results when local decision-making units offer differential advantages (e.g., lower tax rates that attract companies and create jobs in a depressed area). Instead, smaller decision-making units make explicit their reasons for changing the rules, and monitoring bodies (specifically, agencies and courts) can censor those units when they violate norms of fairness, justice and equal treatment (Sabel and Dorf 1998, 288). While Dorf and Sabel praise the pragmatist spirit of bench-marking and learning-by monitoring, they also criticize Deweyan pragmatism for its inability to stipulate those democratic institutions that would foster a more informed citizenry. Since the kind of new governance they envision requires citizens to actively engage in dialogic processes, the participants must have the requisite skills to critically reflect and intentionally debate, for instance, how local industry shall be monitored in order to ensure the protection of environmental health. While Dewey had imagined a division of labor between enlightened experts and members of the lay public familiar with local matters, he also foresaw average citizens gaining expert knowledge through broad-based educational reforms. “Of the actual institutions of self-government he [Dewey] said little,” Dorf and Sabel (1998) contend, “preferring to exult instead at the prospect of a public of scientist-poets, enlightened by the reading of good newspapers and enlarged in their sympathy with the multitude by their reading of Walt Whitman” (415). The view that Dewey was not an institutionalist is shared by a number of his critics, especially scholars outside the discipline of Philosophy.4 Inside the discipline, his younger colleague at Columbia University, John Herman Randall, Jr. (1951), criticized Dewey for failing to specify the exact political technology, including civic competencies and

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background institutions, that would enable individuals to become competent democratic citizens: Instead of many fine generalities about the ‘method of cooperative intelligence,’ Dewey might well direct attention to the crucial problem of extending our political skill. For political skill can itself be taken as a technological problem to which inquiry can hope to bring an answer… Thus by rights Dewey’s philosophy should culminate in the earnest consideration of the social techniques for reorganizing beliefs and behaviors – techniques very different from those dealing with natural materials. It should issue in a social engineering, in an applied science of political education – and not merely in the hope that someday we may develop one. (90–91) Of course, centralized efforts to engineer good democratic citizens by prescribing proper political means – whether institutional arrangements or civic education – are exactly what advocates of decentralized decision making reject. Dewey left open the question of what constitutes adequate political technology so as not to foreclose opportunities to experiment with novel institutional and educational forms – the same kind of opportunities that gave rise to Sabel’s vision of new governance and Sabel and Dorf’s theory of democratic experimentalism. Similar to Dewey, Sabel and Dorf, Hayek, as we will see, collapses the distinction between means and ends so that a pre-given end or telos, such as a just distribution of resources or an ideally fair outcome, does not stifle imaginative experimentation with and democratic choice of novel institutional means. In the next section, I articulate Friedrich Hayek’s theory of a spontaneous order with the purpose of comparing it to Dewey’s method of intelligence and Sabel and Dorf’s notion of a democratic experiment. 3. Hayek’s Spontaneous Order Hayek’s notion of a spontaneous order is central to his theory of politics and governance. It conveys the simple idea that social, legal and political institutions are at their best when they result from human action, not from human design. Expressions that are synonymous with spontaneous order include “selforganization,” “emergent behavior,” “unplanned system,” and “extended order.” An order for Hayek (1973) is “a state of affairs in which a multiplicity of elements of various kinds are so related to each other that we may learn from our acquaintance with some spatial and temporal part of the whole to form correct expectations concerning the rest, or at least expectations which have a good chance of being correct” (36).5 The spontaneity of the order emerges from its being outside the control of any single human agent or organization, its lack of an ultimate end or purpose, and its possession of a level of complexity

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exceeding the limits of human cognition. According to Hayek (1988), a spontaneous order “far surpasses the reach of our understanding, wishes and purposes, and our sense perceptions, and that which incorporates and generates knowledge which no individual brain, or single organization, could possess or invent” (72). Whereas spontaneous orders organically evolve, centrally planned organizations or human-made orders are rationally constructed and deliberately controlled – the difference between what Hayek (1973) calls “kosmos” and “taxis,” respectively (37–38). The most common error (what Hayek calls “rational constructivism”) is to assimilate all orders (including spontaneous orders or kosmos) to the description of designed orders or taxis, understanding them as products of human planning and purposes, even though spontaneous orders (or kosmos) lack these properties (38). Hayek (1988) disputed the “socialist” view that centralized planners could comprehensively design and regulate “rational economic orders,” ignoring the tacit knowledge, customary norms and immanent rules that agents regularly rely upon in their habitual and unreflective practices (6). Although the economic market is, for Hayek, the quintessential spontaneous order, others emerge in an institutional context, generating norms and rules, and thereafter structuring productive relations between agents. According to Robert Mulligan (2006), “[s]pontaeously evolved institutions include government, laws, markets, and money” (74).6 In markets (or as Hayek calls them, “catallaxies”), commodity prices signal to business entrepreneurs how they should plan and coordinate their activities in an environment of fiscal uncertainty. However, no individual or group controls the market qua spontaneous order. “The whole acts as one,” Hayek (1948) declared, “not because any of its members survey the whole field, but because their limited individual fields of vision sufficiently overlap so that through many intermediaries the relevant information is communicated to all” (86). Likewise, in governments, information (whether in the form of press statements, laws, policies or judicial precedent) has value because it indicates to entrepreneurial agents (e.g., the president, legislators, judges, bureaucrats or average citizens) how they ought to navigate an indeterminate (and sometimes treacherous) political environment.7 A political system qua spontaneous order accepts inputs (i.e., demands and supports for specific policies) and delivers outputs (i.e., particular policies, foreign or domestic), but the multiplicity of agents, complex relationships and “data” make it impossible for “a single mind ... [to] work out the implications” (Easton 1965, 18–20; Hayek 1948, 77; Hayek 1960, 4). For Hayek (1988), the “fatal conceit” of centralized government planning is the belief that whatever results from a spontaneous order “could have been done better by the use of human ingenuity” (83) – that is, by human design. Instead, social institutions, such as representative democratic assemblies, evolve to accommodate two facts. One, they are subject to a process of natural selection, whereby “variation, winnowing and sifting” permits adaptation to “an extended order of human interactions ... far surpassing our vision or our capacity to

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design” (Hayek 1988, 14). Two, extensive interventions in social and economic affairs produce externalities (or unintended third-party effects), so at most legislators should codify customary rules to minimize these. 8 The best that a “society will achieve,” Hayek (1981) claims, is “a coherent and self-consistent overall order only if it submits to general rules in its particular decisions” (17). Hayek’s theory has some resonance with Dewey’s pragmatism as well as Dorf and Sabel’s democratic experimentalism. First, all advance the thesis that means and ends are interdependent. Hayek (1978b) rejects the strategy of positing a final end or telos, especially when that end is social justice – what Hayek characterizes as “empty and meaningless,” a “mirage” (68–69). In a spontaneous order, entrepreneurial success depends on the individual’s prudent selection of means and proximate goals (or ends) under conditions of risk and uncertainty. Since agents cannot comprehend the order’s overall purpose, they should not presume to know in advance what constitutes an ideal outcome or “just distribution” of material and social goods (Hayek 1978, 2; 1981, 68). Similar to Hayek, Dewey collapses the distinction between means and ends, conceiving an agent’s ends as intermediate goals, not final destinations. Though Dewey was more optimistic than Hayek about realizing social justice, they would agree that the imposition of absolute, fixed or terminal ends could impede progress in imaginative deliberation and rigorous experimentation. Means and ends should operate as tentative, flexible and intermediate instruments. In Dewey’s (1996) words, “an idea of the final consequences [or ends] ... is itself a means of directing action” (LW 13, 351). Similarly, Dorf and Sabel (1998) insist that democratic experiments require better methods for pooling information, making rules and monitoring processes, not for selecting end-patterned results (410–413). Moreover, choosing who wins and loses in advance of deliberations about means would undermine procedural fairness. However, in focusing only on the choice of means and refusing to fashion distributive outcomes, the designer of democratic experiments potentially blocks the way toward achieving social justice. According to Orly Lobel (2004), the “strong collapse between means and ends” sets the stage for relegating “substantive criteria of the common good” (388–389; cited in Cohen 2010, 382). Second, a democratic experiment, on Dorf and Sabel’s account, resembles Hayek’s notion of a spontaneous order, as well as Dewey’s method of intelligence, insofar as they exemplify the virtues of decentralized decision making, learning through experimentation, evolutionary growth, and fallibilism in inquiry. On Hayek’s (1978c) account, competition between individuals, whether economic or not, is an experiment – what he terms a “discovery procedure” (179). In this procedure, independent entrepreneurs obtain valuable information (often in the form of prices), experiment with novel ideas and institutions, distribute their knowledge widely, and co-create customary rules within emergent networks of transaction (i.e., spontaneous orders), all the while denying “that the facts to be discovered are already known” (Hayek 1981, 18).9 Dorf and Sabel (1998) also contend that governance structures work best when

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they are dispersed, entrepreneurial, institution-generating, information-pooling, experimental, reliant on local knowledge, and productive of bottom-up rulemaking. For Dewey (1996), too, the method of intelligence or experimental inquiry, once applied to human affairs, opens up new vistas for social understanding and control, much as science has done for the natural world: “What is needed is not the carrying over of procedures that have approved themselves in physical science, but new methods as adapted to human issues and problems, as methods already in scientific use have shown themselves to be in physical subject matter” (LW 16, 355). The virtue of an experimental attitude is fallibilism; not proceeding as if the outcomes of prior inquiries are absolutely certain – or in Hayek’s language, “already known”; always conceding the possibility that prior findings could be wrong. Richard Posner (2003a) observes that “[t]here is close convergence between Dewey and Hayek, both emphasizing the radical dispersion of knowledge across persons under the conditions of modernity” (1).10 According to one commentator, Hayek affirms “an individual’s freedoms to experiment, to learn, to explore, to act on impulse, and to test ideas [that] offer personal benefits… under the heading of personal growth: expansion of ‘talents’ and ‘capabilities,’ widening experience and selfdiscovery” (Phelps 2009, 5). Also, for Sabel, Dorf and Dewey, personal growth parallels the learning process – whether expressed in Dorf and Sabel’s notion of learning-by-monitoring or Dewey’s learning-by-doing. According to Dewey (1996), “education means the enterprise of supplying the conditions which ensure growth, or adequacy of life, irrespective of age” (MW 9, 56). Though less aspirational and more matter-of-fact, Hayek sees educative growth as equally integral to social progress, particularly when progress means the creation and dispersion of innovative ideas: “[P]eople learning what others do by a process of communication of knowledge,” he insists, is an “empirical fact” (Hayek 1978a, 3). Admittedly, Hayek’s theory of governance, particularly his notion of a spontaneous order, exalts individual choice and entrepreneurial competition to an extent that Sabel and Dorf’s theory expressly denies. Instead, democratic experimentalism emphasizes collective deliberation and experimental collaboration as integral to an effective scheme of decentralized decision making. Nevertheless, their respective views are sufficiently similar to establish a presumption in favor of the thesis that democratic experimentalism is at least loosely Hayekian. However, this thesis is not new. Amy Cohen (2010) has persuasively argued that, notwithstanding Sabel’s early criticisms of Hayek’s program for democratic reform, there are obvious similarities between their theories of governance: “Sabel’s vision of governance borrows Hayek’s idea that the state should cultivate environments conducive to learning, experimentation, adaptability, and growth” (364). The novelty of my thesis, then, derives not simply from the claim that democratic experimentalism is somewhat Hayekian, but from the subsequent claim that a mixed Deweyan-Hayekian analysis reveals some critical mistakes in Dorf and Sabel’s theory.

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Besides minimizing their debt to Hayek, Dorf and Sabel make two related mistakes. They ignore both the role of implicit knowledge and the threat of strategic action in democratic experiments. 4.1. Implicit Knowledge Neglected Dorf and Sabel’s democratic experimentalism differs strikingly from Hayek’s theory of governance in its epistemological assumptions about human agency. In democratic experiments, agents engage in discourse, explicitly stating their reasons for selecting effective means, formulating specific rules and testing novel institutional designs. The process is itself “deliberative” since “decisions ... are normally made by means of reason giving through discussion, not (except in cases of deadlock) the counting of votes” (Dorf and Sabel 1998, 320). In contrast, for Hayek, agents defer to custom, tradition and generic rules, all of which constrain their ability to specify reasons in advance of choice and action. According to Hayek (1988), “Man became intelligent because there was a tradition – that which lies between instinct and reason – for him to learn. This tradition, in turn, originated not from the capacity to rationally interpret facts but from habits of responding” (22–23). Mores and traditions for Hayek function as metaphorical guideposts, directing agents when their instinctual drives and rational faculty fail. Customs differ from reasons insofar as they offer implicit, not explicit, knowledge (or habits of response). Also, the kinds of rules that characterize customary interactions versus structured deliberations differ, reflected in the two kinds of orders from which they emerge: “A self-generating or spontaneous order and an organization are distinct, and their distinctiveness is related to the two kinds of rules or laws which prevail in them” (Hayek 1973, 2). Rules populating spontaneous orders tend to be highly formal and abstract, remotely coordinating human action with the aid of social custom; whereas rules legislated by human-made organizations – for instance, Sabel and Dorf’s decentralized decision-making units – are rationally tailored to the resolution of particular problems. According to Hayek (1964), “the rules which the elements [of the spontaneous order] follow need of course not be ‘known’ to them [individual agents]” (7). As in craft learning, an apprentice unconsciously acquires the knowledge and skills of a consummate craftsman through everyday practice, without ever being able to state the underlying rules, reasons or principles of his craft.11 Whereas, for Hayek, individuals rely upon implicit or tacit knowledge in making decisions, for Dorf and Sabel, knowledge must be explicitly communicated through public discourse and reason-giving deliberation.12 According to Sabel (1995), “there is no place here for tacit knowledge, defined as know-how that defies discussion, nor for crafts or artisan forms as the repository of such ineffable know-how” (21). Thus, epistemological agency for

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Hayek is, at its core, implicit and subjectivist, whereas for Dorf and Sabel it is explicit and deliberativist. How does the omission of implicit knowledge affect Dorf and Sabel’s theory of democratic experimentalism? Some assistance in answering this question can be found in John Dewey’s metaphysics of experience. According to Dewey (1996), the majority of adult human experience is had, not known – that is, a matter of facing the totality of one’s situation, feeling its pervasive quality, and undertaking activities that enrich the fund of settled meanings (LW 13, 222; Ralston 2009). Stated differently, a minority of lived experience consists of cognition or reflection. The tendency among philosophers to privilege the knowing experience over the having experience – what Dewey calls “the intellectualist fallacy” – is not only empirically inaccurate, but also normatively flawed, for it results in a misplaced “quest for certainty” amidst the flux of the precarious and stable (LW 4, 232; LW 4, 5; LW 1, 52). In other words, implicit or tacit knowledge features more prominently than explicit or expressed knowledge in our daily experience. Moreover, such knowledge is an invaluable engine for coordinating decentralized information networks. Echoing Hayek, Posner (2003a) notes that “[w]ith knowledge dispersed and much of it tacit, there is no way a central authority, such as a legislature or court, can gather and marshal the knowledge necessary for sensible decisions on issues of law or policy. The dispersed and tacit knowledge will, however, be found aggregated in [customary] rules that grow out of the practices of the relevant community” (2). Dorf and Sabel’s faith that all governance problems will prove soluble insofar as decentralized decision-making units deliberate and make their reasons explicit is, in the language of Hayek, a “fatal conceit.” Thus, recognition that human experience is funded with implicit knowledge (for instance, customary rules) should feature in any robust theory of governance, particularly one described by its creators as “practical” and “pragmatist.” Unfortunately, Dorf and Sabel’s democratic experimentalism neglects implicit knowledge formations and their fundamental place in decentralized information systems. 4.2. Strategic Action Underestimated Another Hayekian objection to democratic experimentalism is that it underestimates the threat of strategic action. Dorf and Sabel (1998) acknowledge the threat of strategic action, but only to the extent that large-scale decision-making institutions, such as legislatures, are susceptible to co-option by their clever members and outside interest groups (273, 282–283).13 They mistakenly assume that localized decision-makers will selflessly deliberate in order to solve common problems, rather than form factions and negotiate to their strategic advantage. Dorf and Sabel describe the idealized process in Deweyan language: “Once begun, pragmatic problem solving loosens the hold of interests by fitfully darting, as it were, beyond its reach, thereby discovering solutions bit by bit in the unfamiliar territory beyond the reach of bounded rationality and habitual

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calculations of advantage” (322). The standard objection to this view, especially in the Hayek-inspired game-theoretic literature of Public Choice, 14 is that rational, self-interested actors will either defect or co-opt the process of deliberative decision making for strategic advantage. The threat of strategic action is most clearly represented in gametheoretical models of collective action. According to Russell Hardin (2008), there are at least four types of coordination situations relevant to group action: (i) Prisoner’s dilemma, (ii) pure conflict, (iii) simple coordination, and (iv) unequal coordination (464). These strategically distinct forms of group interaction can be formally represented as preference ratings (or monetized as dollar payoffs), with the best being 1, the second best 2, and so on, as follows:

Figure 1: Prisoner’s Dilemma

Cooperate Defect

Cooperate 2, 2 1, 4

Defect 4, 1 3, 3

Figure 2: Pure Conflict Option I Option II

1, 2 2, 1

Figure 3: Simple Coordination

Option I Option II

Option I 1, 1 2, 2

Option II 2, 2 1, 1

Figure 4: Unequal Coordination

Option I Option II

Option I 2, 1 3, 3

Option II 3, 3 1, 2

*All adapted from Hardin (2008, 464)

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Of the four options, the most desirable form of group interaction is simple coordination (Figure 3), wherein each party’s interests are satisfied because their cooperation makes both better off. Less desirable is the situation – what is called an “unequal coordination” – in which both parties wish to cooperate, but every possible coordination equilibrium makes one party better off and the other worse off (Figure 4). An even less desirable scenario is the classic prisoner’s dilemma (Figure 1), whereby the optimal move for both parties is to defect while the other seeks to cooperate; the suboptimal move is bilateral cooperation; and the worst outcome manifests when both parties defect. The absolutely worst-case situation is pure conflict (Figure 2), a scenario in which both parties wish to seize what the other has or obstruct the other’s plans by dictating the proper course of action, such that the outcome is always zero-sum.15 Collective action problems can also threaten the politics of deliberative problem solving. Following Hayek (especially his notion of “catallaxy”)16 and game theorists, public choice scholars typically model the strategic choices (and payoff structures) involved in political interactions after those of market exchanges. “Politics is a structure of complex exchange among individuals,” James Buchanan (1987) explains, “a structure within which persons seek to secure collectively their own privately defined objectives that cannot be efficiently secured through simple market exchanges” (246). Self-interested agents can choose to forebear the expense of contributing to group discussion while retaining the benefits of group membership, thereby living up to the moniker of “free riders” (Olson 1965). While not all deliberators behave as free riders, some will be tempted to either defect, thus resulting in a prisoner’s dilemma (Figure 1), or seek an outcome that benefits themselves to the other transacting party’s detriment, thereby producing either an unequal coordination or pure conflict (Figures 2 and 4). As Public Choice scholars Victor Vanberg and James Buchanan (1990) note, “rational self-seeking actors cannot be expected to contribute unless there are selective incentives, that is, benefits that are contingent on the actors’ own contributions” (184). Hence, coordinating collective action requires that agents mutually agree to abide by a general scheme of selective incentives which “stimulate a rational individual in a latent group to act in a group-oriented way” (Olson 1965, 51). Besides offering selective incentives, the only other protection against strategic action is to threaten coercion. In Liberalism and Social Action, John Dewey (1996) suggests that “dependence upon organized intelligence as the method for directing social change” might require, “when society through an authorized majority has entered upon the path of social experimentation,” that “force . . . be intelligently employed to subdue and disarm the recalcitrant minority” (LW 11, 61). When the majority has exhausted all peaceful means, even Dewey agrees that violence is necessary if a stubborn minority stands in the way of democratic experimentation. While Dorf and Sabel concede that strategic action endangers large-scale institutional (particularly legislative) decision-making processes, they under-

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estimate the comparable threat at the level of small-scale, local decision-making units.17 Their assumption seems to be (though it is not always entirely clear) that through continual bench-marking and monitoring-by-learning – what they call “methods of iterated goal-settings” (Dorf and Sabel 1998, 298) – deliberative problem solving will resemble (in the language of a game-theoretical analysis) a series of simple coordinations. However, players in a repeated game (in this case, the game of goal-setting) can reach a single repeated solution (what economists call an ‘equilibrium’ or ‘Nash equilibrium’) 18 that does not resemble a simple coordination (Przeworski 1991, 20). Indeed, a single act of defection can trigger repeated sub-optimal outcomes on the order of an iterated prisoner’s dilemma (see Figure 1).19 Following the Hayekian-Deweyan logic, then, democratic experimentalism’s practice of iterated goal-setting would not guarantee coordination unless participants were (i) offered selective incentives to collaborate or (ii) threatened with coercive sanctions for defecting.20 5. Conclusion In drawing the article to a close, I would like to discuss the methodological implications of my previous analysis of Dorf and Sabel’s democratic experimentalism. Specifically, what are the prospects for developing a Deweyan-Hayekian (or Hayekian-Deweyan) framework for conducting inquiry in democratic theory and governance as well as other areas of political studies? As I have noted elsewhere (Ralston 2011), Dewey’s pragmatism is a rich resource for the study of politics. According to Macedo (1999) and Gamble (1996), Hayek’s thought is as well. What dissuades all but the most intrepid scholars from attempting comparative treatments of Dewey and Hayek’s ideas are their obvious ideological differences. Dewey and Hayek are, to say the least, odd bedfellows.21 Dewey was a guild socialist and progressive liberal who argued against laissez-faire (or classic) liberalism. Hayek was a classic liberal who fiercely criticized socialism. However different their views were on the appropriate size and function of government or the relative merits of a statecontrolled economy, both Dewey and Hayek – as Stephen Macedo (1999) notes of Michael Oakeshott and Hayek – ”figure squarely in the liberal tradition” on at least three counts: (i) their “confidence in the power of public ideas,” (ii) their “commitment to an ever wider extension of liberal institutions,” and (iii) their “faith in human progress” (289). On more specific grounds, Colin Koopman (2009) and Robert Mulligan (2006) have compared the two figures extensively; Mulligan, to clarify the radical subjectivism in Austrian economics; Koopman, to explore the relationship between markets and morals in contemporary discourse over international trade. The Dewey-Hayek comparison could be extended into additional areas of political studies. For instance, in policy studies, one could examine the ways in which Dewey and Hayek’s similar strategy of collapsing means and ends permits a richer understanding of incremental policy development or “muddling through” (Lindblom 1958, 1959). Likewise, a

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Deweyan-Hayekian framework could assist scholars in gaining a better understanding of specific issues in international affairs, public administration and even global environmental politics. My point is that a genuinely experimentalist approach to studying Dewey and Hayek’s political ideas begins with the seeing beyond their ideological differences and eventually leads back to a deeper appreciation of their shared place in the liberal tradition. 22 It is an approach that Dorf and Sabel’s account of democratic experimentalism would have benefited from.

NOTES 1. Dorf and Sabel’s theory is not the only Dewey-inspired account of democratic experimentalism, though it is by far the most comprehensive. Ansell’s (2011) account is also noteworthy. Dorf and Sabel (2000), Fung (2001, 2004), Karkkainen, Fung and Sabel (2000), Noonan, Sabel, and Simon (2009), and Sabel and Zeitlin (2008) have applied these Deweyan theories of democratic experimentalism to practical policy matters, such as drug treatment, community policing, environmental regulation, child welfare, and regional governance. Pragmatist philosophers, such as Koopman (2012), Waks (1998) and Weber (2011), have elaborated on Dewey’s experimentalism and demonstrated how it can be fruitfully extended to other areas of inquiry, including politics, ethics and education. 2. Typically the bifurcating move is disguised as a false choice – between, for instance, a weakly regulated or “free” market with a minimalist night-watchman state and a strong state with a centrally-planned economy plus outlets for robust citizen participation (or minarchism and statism) – relieved by some third, forum-based alternative. For instance, Jon Elster (1997) believes that opposing the market to the forum gives rise to three views of politics: one private and market-based (social choice theory), another that is public and educative (participatory democratic theory), and a third (preferred) alternative which is forum-based and rational (deliberative democratic theory). Likewise, Cohen and Sabel (1997) describe their theory of directly-deliberative polyarchy as a response to “the false dichotomy of state and market,” recommending a third estate composed of secondary institutions or “civil society more broadly” (315). Also offering a forum-based alternative to purely state- and market-based governance, Dorf and Sabel (1998) define a directly-deliberative polyarchy in more operational terms, as a “system in which citizens in each locale participate directly in determining and assessing the utility of the services local government provides, given the possibility of comparing the performance of their jurisdiction to the performance of similar settings” (288). 3. Brandeis calls for states to become “laboratories of democracy” in the case of New States Ice Co. v. Liebmann (1932, 311). Sabel (1995) compares democratic experimentalism with Brandeis’s call, claiming that “democratic experimentalism would finally make good on the old idea of Brandeis ... of the states as laboratories of democracy by ensuring that everyone was attentive to the outcome of the experiments” (33). 4. See Knight and Johnson (1999, 566), Ames (2008, 179), and Posner (2003b, 109). I argue against this view in Ralston (2010). 5. Fehl’s (1994) interpretation of ‘order’ clarifies Hayek’s dense account: “In principle, ‘order’ can be interpreted as the intended outcome of planned activities or as

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the consequence of a process of self-structuring generated, but not intended, by the activities of the human beings involved” (197). 6. Gamble (1996) adds “language” to the list of possible non-market institutions that can be characterized as “spontaneous orders” (49). 7. Khalil (1997) contends that Hayek’s generalization from the market to the political forum is an illicit move: “Hayek fails to extend the notion of organization order from the firm level to the level of the political community” (301). 8. Macedo (1999) highlights the danger, which Hayek warned of, whereby government decisions to over-regulate social and economic affairs result in unforeseen externalities: “Because of the importance of decentralized decision making in spontaneous orders, interventions into economic and social systems often have unintended consequences, consequences that are often quite the reverse of what is intended” (291). 9. Hayek (1978c) explains how competition serves as an experimental or discovery procedure: “If we do not know the facts we hope to discover by means of competition, we can never ascertain how effective it has been in discovering those facts that might be discovered” (180). 10. Posner (2003b) elsewhere notes that “Dewey’s notion of distributed intelligence” bears a striking resemblance to “Hayek’s influential idea that socially valuable knowledge is widely distributed throughout the community” (102). 11. Sabel (1995) believes that modeling an organization after a spontaneous order, including the adoption of a Hayekian system of formal rules, would convert management into informal supervisors and incentivize the hoarding, rather than sharing, vital information (20). 12. Cohen (2010) identifies the same discontinuity between Sabel and Hayek’s models of governance: “[W]hereas Hayek’s theory of governance by abstract formal rules assumes that individuals are limited in their capacity to make explicit formulations, Sabel’s theory of governance via specific discursive rules depends upon exactly the opposite presumption” (365). 13. This is especially true in the situation of majority cycling. Dorf and Sabel (1998) only briefly describe the majority cycling threat as when “legislators would chase themselves about in an endless search for majorities, preferring B to A, C to B, and then A to C “(273). However, this is a highly synoptic account. To elaborate, there are at least three difficulties with what social choice theorists refer to as majority cycling or ‘the paradox of voting.’ The first difficulty, specified by Kenneth Arrow in his now-famous impossibility theorem, is that majority cycling leads to irrational collective behavior. As a condition for individual decisions to be rational, preference orderings should be transitive, i.e. if A is preferred to B and B to C, then A is preferred to C. Likewise, if collective decisions are rational, social preference orderings too should display transitivity. However, according to Arrow (1951), majority decision-making procedures can potentially result in intransitive social preference orderings, which thereby violate the rationality condition: “the method ... for passing from individual to collective tastes fails to satisfy the condition of rationality, as we ordinarily understand it” (3). A second difficulty is that of incoherence. As the pairing of alternatives periodically shifts, Riker and Ordeshook (1973) point out, so does the preferred social preference ordering (84ff). The majority-decided status quo, A, can become C (as C is preferred to A), then B (as B is preferred to C) and return to A (as A is preferred to B); a cycle that will repeat itself indefinitely unless individual preferences change or some institution imposes a decision. In the case that a non-representative institution decides the outcome, then a minority group controlling the institution frustrates a majority disposed to another outcome.

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Lastly, as Frohlich and Oppenheimer (1978) note, “the difficulty of arbitrariness occurs in any voting system which involves a series of head-to-head votes, such as an amendment process” (17ff). The victor in such a series of matches normally constitutes what is called a ‘Condorcet winner’. 14. By the late 1950s and early 1960s, some political scientists and economists began modeling the actions of governments, politicians and voters utilizing the analytic tools of economics. Their ‘Public Choice’ models explain and predict political activity, such as voter turnout and bureaucratic behavior, in the same way that economic models explain and predict market activity, such as consumer and firm behavior. In Buchanan’s (1989) words, “[p]ublic choice is a perspective on politics that emerges from an extension of the tools and methods of the economist to collective and nonmarket decision-making” (13). 15. Despite the recurrence of such disagreeable situations, Hardin (2008) is optimistic that they can be avoided through the emergence of either spontaneous or human-made orders: “Instead [of resorting to violence], we use legal institutions or have more of less spontaneous recourse to social norms or group management to resolve such issues as our pure conflict” (464). 16. Hayek (1978b) refers to free market competition as “the game of catallaxy,” a “wealth-creating game,” a “zero-sum game” and one whose outcomes result from a “mixture of skill and chance” on the part of its players (108). DiZerega (1989, 235) characterizes catallaxy as “a social order predicated upon contractual exchange.” 17. The closest Dorf and Sabel (1998) come to admitting that strategic action threatens small-group deliberation is in citing “the extensive opportunities for rentseeking concealed by the forms of deliberation that these perversities, in part, create” (282). Rent-seeking in the context of deliberative decision making refers to the activities of ascendant or dominant groups of agents seeking to coerce weaker opposition groups; others trying to exploit their role as agenda-setters; and still others attempting to spread misinformation. “Rent-seeking theory argues,” Bohnet and Frey (1994) explain, “that those who are part of the agenda setting and decision-making may form a cartel therewith creating and appropriating political rents [or benefits]” (348). In addition, the state can legally mandate that some private institutions and associations sponsor deliberations, thereby granting enterprising rent or benefit seekers institutionalized support for dominating the deliberative process and manipulating outcomes. 18. In game theory, the equilibrium concept was first formulated by John Nash (1950) as the point in a game at which it is rational for all parties to cling to their existing strategy. In public choice and neoclassical economics, according to Johnson (1991), “[e]quilibrium means that a state of balance exists between opposing forces or that there is a state of rest, the achievement of which means that there are no incentives for further changes” (21). 19. For an examination of the Nash equilibrium concept in models of bargaining behavior under incomplete information, see Chatterjee and Samuelson (1983). 20. John Braithwaite (2004) proposes a more limited and localized Hayekian practice of nodal governance: “We only understand bits of the network that we monitor directly. While governance cannot encompass synoptic planning, actors can govern nodally [or by collaboration at a particular point of control]” (308). However, even this option would seem to require selective incentives or coercion to stop strategic actors from co-opting these nodal points of governance. 21. Another reason that they are odd bedfellows is that Hayek misunderstood Dewey’s notion of liberty. In The Constitution of Liberty, Hayek (1960) selectively

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quotes Dewey to demonstrate that he endorsed a thoroughly positive conception of liberty, such that freedom is merely an expression of governmental power (17). This interpretation, if accurate, would make Dewey’s view of liberty wholly incompatible with Hayek’s strong endorsement of negative liberty, or the view that the affairs of private individuals should suffer minimal government interference. However, Dewey’s view is much more nuanced than Hayek’s account suggests. For Dewey (1996), “[t]he problem of freedom and of democratic institutions is tied up with the kind of culture that exists” (LW 13, 72). For a more extensive treatment of Dewey’s notion of liberty, see Ralston (2009b, 143–144). 22. Unfortunately, some scholars – for instance, Hay (2012), Ryan (1997), and Savage (2002) – have been too quick to wed Dewey’s political philosophy to the contemporary phase of the liberal tradition, while giving scant attention to the common ground it shares with the classic phase.

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Dorf, M. C. and C. F. Sabel. 1998. “A Constitution of Democratic Experimentalism,” Columbia Law Review 98(2): 267–473. Dorf, M. C. and C. F. Sabel. 2000. “Drug Treatment Courts and Emergent Experimentalist Government,” Vanderbilt Law Review 53: 831–883. Elster, J. 1997. “The Market and the Forum: Three Varieties of Political Theory,” in Deliberative Democracy: Essays on Reasons and Politics, ed. J. Bohman and W. Rehg (Cambridge, Mass.: MIT Press), pp. 3–33. Fehl, U. 1994. “Spontaneous Order,” in The Elgar Companion to Austrian Economics, ed. P. J. Boettke (New York: Edward Elgar), pp. 197–205. Frohlich, N. and J. A. Oppenheimer. 1978. Modern Political Economy. Englewood Cliffs, N.J.: Prentice-Hall. Fung, A. 2004. Empowered Participation: Reinventing Urban Democracy. Princeton, N.J.: Princeton University Press. Fung, A. 2001. “Accountable Autonomy: Toward Empowered Deliberation in Chicago Schools and Policing,” Politics & Society 11(1): 73–103. Gamble, A. 1996. “Hayek and the Left,” Political Quarterly 67(1): 46–53. Garrouste, P. 1994. “Menger and Hayek on Institutions: Continuity and Discontinuity,” Journal of the History of Economic Thought 16(2): 270–291. Hardin, R. 2008. “Are Homo Economicus and Homo Politicus Identical Twins?” Public Choice 137(3–4): 463–468. Hay, C. 2012. “Consonances Between Liberalism and Pragmatism,” Transactions of the Charles S. Peirce Society 48(2): 141–168. Hayek, F. A. 1948. Individualism and Economic Order. Chicago: University of Chicago Press. Hayek, F. A. 1960. The Constitution of Liberty. Chicago: University of Chicago Press. Hayek, F. A. 1964. “Kinds of Order in Society,” New Individualist Review 3(2): 3–12. Hayek, F. A. 1973. Law, Legislation and Liberty: Rules and Order, vol. 1. Chicago: University of Chicago Press. Hayek, F. A. 1978a. “Coping with Ignorance,” Imprimis 7(7): 1–6. Hayek, F. A. 1978b. Law, Legislation and Liberty: The Mirage of Justice, vol. 2. Chicago: University of Chicago Press.

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Hayek, F. A. 1978c. New Studies in Philosophy, Politics, Economics and the History of Ideas. Chicago: University of Chicago Press. Hayek, F. A. 1981. Law, Legislation and Liberty: The Political Order of a Free People, vol. 3. Chicago: University of Chicago Press. Hayek, F. A. 1988. The Fatal Conceit: The Errors of Socialism, ed. W. W. Bartley, III (Chicago: University of Chicago Press). Johnston, D. 1991. “Human Agency and Rational Action,” in The Economic Approach to Politics: A Critical Reassessment of the Theory of Rational Action, ed. K. R. Monroe (New York: Harper-Collins), pp. 94–112. Karkkainen, B. C., A. Fung, and C. F. Sabel. 2000. “After Backyard Environmentalism: Toward a Performance-based Regime of Environmental Regulation,” American Behavioral Scientist 44(4): 690–709. Khalil, E. 1997. “Friedrich Hayek’s Theory of Spontaneous Order: Two Problems,” Constitutional Political Economy 8(4): 301–317. Knight, J., and Johnson, J. 1999. “Inquiry into Democracy: What Might a Pragmatist Make of Rational Choice Theories?” American Journal of Political Science 43: 566–589. Koopman, C. 2009. “Morals and Markets: Liberal Democracy through Dewey and Hayek,” Journal of Speculative Philosophy 23(3): 151–179. Koopman, C. 2012. “Pragmatist Resources for Experimental Philosophy: Inquiry in Place of Intuition,” Journal of Speculative Philosophy 26(1): 1–24. Lindblom, C. E. 1958. “Policy Analysis,” American Economic Review 48(298): 298–312. Lindblom, C. E. 1959. “The Science of ‘Muddling Through’,” Public Administration Review 19(1): 79–88. Lobel, O. 2004. “The Renewal Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought,” Minnesota Law Review 89: 262–390. Macedo, A. 1999. “Hayek’s Liberal Legacy,” The Cato Journal 19(2): 289–300. Mulligan, R. 2006. “John Dewey’s Ways of Knowing and the Radical Subjectivism of the Austrian School,” Education and Culture 22(2): 61–82. Nash, J. F., Jr. 1950. “The Bargaining Problem,” Econometrica 18: 155–162. New States Ice Co. v. Liebmann. 1932. 285 U.S. 262. Noonan, K. G., C. F. Sabel, and W. H. Simon. 2009. “Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform,” Law & Social Inquiry 34(3): 523–568.

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Phelps, Edmund. 2009. “The Justice of a Well-Functioning Capitalism and the Reforms that Will Realize It, Not Kill It,” Symposium on the New World, New Capitalism (January): 8–19. Online at www.columbia.edu/~esp2/Paris%27NewCapitalism%27 Symposium2009Feb26-1.pdf. Posner, R. 2003a. “Hayek, the Mind, and Spontaneous Order,” Transactional Viewpoints 2(3): 1–4. Posner, R. 2003b. Law, Pragmatism and Democracy. Cambridge, Mass.: Harvard University Press. Przeworski, A. 1991. Democracy and the Market. Cambridge, UK: Cambridge University Press. Ralston, S. J. 2009a. “The Ebb and Flow of Primary and Secondary Experience: Kayak Touring and John Dewey’s Metaphysics of Experience,” Environment, Space, Place 1(1): 189–204. Ralston, S. J. 2009b. “On the ‘Freedom Agenda’ and the George W. Bush Legacy: A Philosophical Inquiry,” in Perspectives on the Legacy of George W. Bush, ed. M. O. Grossmann and R. E. Matthews, Jr. (Newcastle upon Tyne, UK: Cambridge Scholars Publishing), pp. 137–151. Ralston, S. J. 2010. “Can Pragmatists be Institutionalists? John Dewey Joins the Nonideal/Ideal Theory Debate,” Human Studies 33(1): 65–84. Ralston, S. J. 2011. “Politics,” in The Continuum Companion to Pragmatism, ed. S. Pihlström (London and New York: Continuum), pp. 150–160. Randall, J. H., Jr. 1951. “Dewey’s Interpretations of the History of Philosophy,” in The Philosophy of John Dewey, ed. P. A. Schilpp (New York: Tudor), pp. 77–102. Riker, W. H., and P. C. Ordeshook, 1968. “The Theory of the Calculus of Voting,” American Political Science Review 62(1): 25–42. Ryan, A. 1997. John Dewey and the High Tide of American Liberalism. New York: W. W. Norton. Sabel, C. F. 1995. “Design, Deliberation, and Democracy: On the New Pragmatism of Firms and Public Institutions.” Paper presented to the Conference on Liberal Institutions, Economic Constitutional Rights, and the Role of Organizations. European University Institute, 15–16 December 1995, pp. 1–44. Online at http://www2.law.columbia.edu/ sabel/papers/Design.html. Sabel, C. F. 2006. Learning by Monitoring. Cambridge, Mass.: Harvard University Press. Sabel, C. F., and J. Zeitlin. 2008. “Learning from Difference: The New Architecture of Experimental Governance in the EU,” European Law Journal 14(3): 271–327.

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Savage, D. M. 2002. John Dewey’s Liberalism: Individual, Community, and SelfDevelopment. Carbondale, Ill.: Southern Illinois University Press. Vanberg, V., and J. M. Buchanan. 1990. “Rational Choice and Moral Order,” in From Political Economy to Economics – And Back? ed. J. H. Nichols Jr. and C. Wright (San Francisco, Cal.: Institute for Contemporary Studies), pp. 175–191. Waks, L. J. 1998. “Experimentalism and the Flow of Experience,” Educational Theory 48(1): 1–19. Weber, E. T. 2011. “What Experimentalism Means in Ethics,” Journal of Speculative Philosophy 25(1): 98–116. Weber, M. 1978. Economy and Society: An Outline of Interpretive Sociology, ed. G. Roth and C. Wittich, trans. H. H. Gerth and C. W. Mills (Berkeley: University of California Press).

Shane J. Ralston Humanities Department Pennsylvania State University, Hazelton 76 University Drive Hazelton, Pennsylvania 18201 United States

Contemporary Pragmatism Vol. 9, No. 2 (December 2012), 117–142

Editions Rodopi ©2012

Dewey’s ‘Democracy without Politics’: On the Failures of Liberalism and the Frustrations of Experimentalism Michael A. Wilkinson

Democracy, for John Dewey, is emphatically not just a form of government; it is an ethical way of life. And yet, historically, it is in a state of fragility, due to the ascendancy of liberal individualism and market holism, which are practically unable to meet the social needs of the day and threaten to eclipse the public that is essential for democracy to thrive. Exposing the politics of liberal individualism and the huge inequalities it generates, Dewey suggests replacing its social forms with those of the scientific community of enquiry and in particular its ethos of experimentation and co-operation. Dewey, and, less excusably, his contemporary admirers, neglect the politics of experimentalism, failing to explain its manner of concrete resistance (or, in hindsight, its capitulation) to the pathologies of modern capitalism, and to consider, in a more general sense, the significance of political power and political action.

1. Introduction Democracy is emphatically not just a form of government, or ‘governance’; it is an ethical way of life. But, thought John Dewey, it is a way of life that is fragile and, due to the pathologies of liberal individualism and modern capitalism, in danger of being eclipsed, along with the ‘public’ that is central to its flourishing. The solution that Dewey proffers is to extend into the democratic arena the method of co-operatively organized intelligence which characterizes scientific enquiry and which has been responsible for the enormous technological advances of the modern age. In order for democracy to flourish, the public (or ‘public of publics’) must become infused with the spirit and experimental activity of the Enlightenment. It is this theme that animates the new wave of scholarship that seeks to renew the pragmatic ethos of Deweyan democracy under the label of ‘democratic experimentalism.’1 Because of this Enlightenment faith in the potential of scientific development to solve problems in all areas of social life it is sometimes suggested that

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Dewey and his fellow pragmatists’ ‘unsuspicious’ approach to power elides the politics of social forms, whether more closely aligned to the market, the state or to the community of scientific enquiry itself.2 “In the end,” remarks Sheldon Wolin, “Dewey’s most crucial concepts – experimentation, method, and culture – were ways of evading questions about power.”3 To what extent is this critique vindicated? To be sure, Dewey is alert to the ideological power exerted by liberal individualism and market holism, which replace shared values and experience with a single economic logic and instrumental rationality. He presents a sustained critique of the modern regime’s individualist worldview, its tendency to create and sustain huge socio-economic inequalities that threaten the ‘public’, and its celebration of competition without social co-operation and technology without human understanding.4 And although rejecting, on the other hand, the alternative Marxist notion of class struggle as an historical explanation of change and as an appropriate means of reform, Dewey insists that the ethics and method of democracy must pervade all social, industrial and economic relations. So any evasion of the role of political power is not the result of a rosetinted view of modern capitalism.5 It is rather a reflection of an attachment to the scientific method, allied to a moral belief in our ability to achieve freedom and self-realization through social collaboration and cooperation, by experimentation and mutual learning. Dewey saw the possibility of harmony between the methods of science and the workings of the economic system. Experimentalism is not only capable of uniting both; it must also become “the method of democracy.”6 Dewey reaches this conclusion by extricating the advances of modernity from its pathologies: the scientific method needs only to be unshackled in the social sphere, liberating the outmoded legal and political institutions of the classical liberal age (in particular those protecting private property) in order to fulfill its potential. But, whether or not this separation is plausible, what is absent in Dewey’s analysis, or so it is argued here, is any explanation or conception of the politics underlying this prognosis. This omission continues to undermine the attempt at a revival of pragmatism. While alert to the politics of liberal individualism, Dewey (like his contemporary admirers) has little to say about the politics of democratic experimentalism. This is a significant omission in two respects: first, it fails to explain if and how political institutions might be instrumentalised in its service (or vice versa) and second (and more fundamentally) it conceals the ‘political dimension’ of its own logic and assumptions. These are issues that contemporary pragmatism in its explicit adoption of Deweyan democracy has yet to confront, yet alone to resolve. Until it does the suspicion will remain that democratic experimentalism is a new attempt at accomplishing what Western political philosophy has perennially sought to achieve but continually failed to deliver: the elimination of politics “for something more reliable.”7 And yet, to conclude, this suspicion might be at least partially allayed by looking beyond the scientific

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community to retrieve the link between creative action and democratic politics that characterizes Dewey’s philosophy. The paper proceeds as follows. First, I chart Dewey’s critique of liberal individualism, which exposes its political and ideological commitments and presents it as a regressive project, antithetical to the existence of a functioning public. I then turn to Dewey’s alternative conceptual and normative framework, an ethical communalism, which not only gestures towards the conditions for a thriving democratic culture but also suggests that a proper understanding of rationality and of knowledge depends in the first place on recognition of the habits of mind that ground our communication and shared experiences. In part 3, I turn to Dewey’s explanation of the gap between the reality of democracy and the communal ideal and his account of how it might be bridged by expanding the scientific community of enquiry, to make political and legal institutions subject to the same kind of innovation that has generated such spectacular technological success. Finally, I explore the missing ingredient that might explain the nature of this bridge and its apparent failure to be traversed: the politics of democratic experimentalism. 2. The Politics of Individualism Dismissing as ‘fictions’ the liberal notions of the ‘non-social individual’ and of men as an ‘aggregated heap’, Dewey’s critique of individualism begins with an outright rejection of the social contract methodology on which liberalism was (and is still) based, and which, he suggests, has already been surpassed by an organic, social approach to the polity.8 Neither the idea of freedom nor the ethical conscience can be fruitfully pursued as possessions of the atomistic man. But this early Hegelianism is already laden with practical and political implications.9 Responding specifically to British jurist Henry Maine’s denigration of democracy as merely a form of government by ‘numerical aggregation’, Dewey rejects any account of democracy that reduces it to the aggregation of individual preferences.10 This critique of individualism must not be misconstrued. Dewey believed strongly in individuality and considered democracy a personal, as well as an institutional value. Individual self-realization depends on moral and spiritual growth through enquiry and experimentation and, above all, through the intelligent communication that comes from education and shared experience. Because self-realization must have a political and social aspect – it depends on engaging with others and participating in common problems – a democratic state must confront the issue of how to harmonize the development of each individual with the good of all.11 Only individuals can be creative as such, but without communication, common language, symbols and signs – all irrevocably social phenomena – there is no way to turn brute facts into meaningful objects.12 Rejection of the liberal’s ‘Newtonian’ worldview survives the evaporation of the Hegelian residue in Dewey’s outlook and evolves into a critique of

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the practices and institutions of the modern world – social, economic and political – that concretely manifest this worldview and endanger the survival of the ‘public’ that is key to communal flourishing.13 A legacy now not only of the philosophy of the naked rights of man unleashed by the French Revolution but of the developments in scientific enquiry and the economy wrought by the industrial revolution, individualism brings in its train a movement of economic laissez-faire operating in the name of ‘natural laws’ in fusion with a new doctrine of ‘natural rights’.14 Individualism is not only philosophically but also politically suspect, not only continuing to be based on psychological ‘fictions’ but also unable in practice to meet the needs of the new society. 15 Since liberal individualism reflects real problems and not merely idealist errors, it must be understood and addressed historically, with attention paid to its own social forms as well as their dysfunctional tendency to eclipse ‘the public’.16 ‘Individualism’, in other words, has a history, and a politics: it is neither the result of a neutral process of scientific discovery, nor is it ‘above the fray’ of competing ideologies.17 It is borne from social and economic change and in turn it initiates and molds new political institutions and social forms, as well as supporting – where in the interests of capital – the continuation of established forms that buttress the vested interests of those with material power. Liberal philosophy fails due to its inability to properly capture individualism as a complex historical phenomenon – one shaped and conditioned by social, economic and political forces – rather than an abstract, timeless and apolitical facet of human nature. This failure is complemented with another: the failure to realize that comprehensive social action is required to further the very goal of individual freedom that liberals espouse but lack the methods and structures to achieve in practice. So the conceptual weakness – taking “individuality to be something given ready-made ... in abstraction from time, instead of as a power to develop” – also has political repercussions because it undermines the justification for the democratic movement itself: personal and collective development. This central Deweyan theme of dynamic and experimental democracy, involving, and constantly evolving through, intelligent action and emotion is inimical to the liberal vision of a finished (or finish-able) project of universal suffrage and civil and political rights, one that, having achieved constitutional status could be frozen in time.18 It necessitates a greater awareness than is paid by the liberal mindset to the material constraints on democratic development, and not least to “the invasion” of the community by the new, impersonal and mechanical modes of human behavior, which, Dewey laments, “is the outstanding fact of modern life.”19 Liberalism fails to appreciate the effects of the private control of the means of production as well as the coercive elements of the existing regime upon the possibility and realization of effective liberty for all.20 Phenomena associated with liberal individualism thus pose a set of concrete obstacles to the development of the ‘Great Community’, which Dewey imagines to be essential in order for democracy to stand any chance of

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surviving, let alone flourishing in the modern age. Liberal individualism is not merely a false idea but also a dangerous ideology, because it simultaneously reflects and distorts social and political dynamics. “It would be a great mistake,” Dewey insists, to regard as idle and impotent “the idea of the isolated individual possessed of inherent rights ‘by nature’ apart from association, and the idea of economic laws as natural...”21 These ideas “were something more than flies on the turning wheels”;22 they “skewed, deflected and distorted, the democratic forms of government which emerged,” and which were utilized “to suit the new class of businessmen.”23 Even though ideas do not directly govern men’s conduct, the “world images” created by them have “like switchmen, determined the tracks along which action has been pushed by the dynamic of interest.”24 And they have led to the formation of new ideas and social forms: instead of introducing a novel and subjective creativity, the industrial-bourgeoisie regime of individualism forged “social bonds as rigid as those which were disappearing and much more extensive.”25 The new socio-economic conditions of liberalism were, paradoxically, the main factors that would consummate the modern nation-state as the primary form of political community, compounding the irony that the conditions which facilitated the ideological transition to individualism depended on collective actions remote from and inaccessible to the individual.26 This transition went unnoticed in a new economic climate that liberated the middle classes27 but is underlined by the fact that other entrenched social and political forms, such as ‘the established form of family association and the legal institutions of property’ – which were deemed to be sacred, and any attempt to reform them ‘subversive’ – remained practically untouched in the new age. 28 Contradicting the impression that ‘everything solid melts into the air’ in the wake of this new capitalistindustrial regime, many of the most fundamental traditions and habits of the age are “hardly affected at all.” In addition to the resilience of the institution of private property and of marriage, even democratic institutions, particularly in the US, are notable for their inflexibility, favoring in substance a ‘privileged plutocracy’.29 But novel forms of association characteristic of modern capitalism do emerge and begin to shape the actual constitution of the public and to determine the location of political power. Chief among these are those ‘great impersonal concerns’ labeled ‘organizations’: “reach[ing] out to grasp the agencies of government ... they are controlling factors in legislation and administration.”30 This uneasy combination of rigidity and innovation in social forms would have devastating effects on political democracy, generating and solidifying huge social and economic inequalities.31 Unlike some of his (and our) contemporaries, Dewey was alert to the antagonism between democracy and capitalism, to the corrupting effects of inequalities of economic power on communities and in particular on the politically disempowering aspects of modern corporate capitalism in American life. Conscious of the specific problems manifested by rampant ‘rugged

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individualism’, and the more abstract thoughts – whether in naturalistic or utilitarian guise – that legitimated it, he ridicules the classical liberal faith in a ‘pre-established harmony’ between capitalism and democracy echoed by British theorists such as Adam Smith and his ‘invisible hand’. Disparity, not equality, was the actual consequence of laissez-faire liberalism.32 But the accumulation of economic power also has a perfidious effect on the political process, not least because of the more general tendency of the power of ‘bread and circuses to divert attention from public matters.’33 Capital accumulation therefore delays and hinders genuine democratic development in both social and political realms. It is blind to the issue of effective socio-economic equality,34 and paves the way for the emergence of aggressive nationalism and political despotism. 35 Capitalism, Dewey laments, is a system that should have been long outgrown as society moved away from a situation of relative scarcity and insecurity and from dependence on the unplanned efforts of small-scale producers.36 But to understand its resilience is to understand the ideological power of its animating philosophy: individualism. It is at this philosophical level that an alternative must be sought. 3. An Ethical Holism Man, Dewey affirms, is a “consuming and sporting” animal “as well as a political one.” But concern that “the political elements in the constitution of the human being,” such as citizenship, have been “crowded to one side”37 suggests that the balance between the various aspects of our social nature – competitive and cooperative – is threatened in the conditions of modern capitalism. From this emphasis on the social whole emerges an account of democracy that is ethical because it is based on achieving freedom compatible with respect and concern for others, and built on cohesion instead of coercion. This is not, however, a pious hope based on blind faith in the possibility of an alternative future. In contrast to the freestanding rationalism of much of what passes as contemporary pragmatism, Dewey extricates democracy from identification with capitalism, self-interest and rugged individualism by emphasizing the significance not only of localism and face-to-face relationships but also of tradition. What this means for Dewey is that knowledge, and even rationality itself, are a function of association and communication (and therefore of action), which are in turn dependent upon tools and methods that are ”socially transmitted, developed, sanctioned.”38 Underpinning Dewey’s critique of individualism is a deep suspicion of liberal assumptions about rationality.39 Its cognitive and epistemological commitments ignore “the fact that man acts from crudely intelligized emotion and from habit rather than from rational consideration.”40 Privileging instead reflection on shared experience and on the effects of intelligence, emotion and habit on human action, Dewey adds – in a remark that stuns the reader in a time when rationality is predominantly conceived in economic and instrumental

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terms – that this is now so obvious to us ”that it is not easy to appreciate that the other idea [that knowledge is a function of isolated individual cognition of discrete objects] was taken seriously as the basis of economic and political philosophy.”41 Of the economic logic of rationality, Dewey notes scathingly that its measure of truth is “derived from the observation of a relatively small group of shrewd businessmen who regulated their enterprises by calculation and accounting.”42 But, conversely, when economic life is “exiled from the pale” of the higher values of morals or politics, it “takes revenge by declaring that it is the only social reality”: classical liberalism and economic determinism then seem to be two sides of the same coin.43 Dewey demands instead an ethical holism: criticizing the isolation of the economic discipline without doubting that economic conditions determine in the main the practical quality of life “that men, women and children actually lead.”44 This ethical holism rejects a Kantian separation of an inner realm from external reality.45 Interest in truth, beauty, intelligence, artistic creativity and scientific enterprise is moral because each is an inherently and inescapably social phenomenon – not in the crude sense of being a “means to some social welfare” but in the deeper sense of being a social “object.”46 Even when understood functionally, the moral end is, he says, “wholly social”; performance of a function is “the creation, perpetuation, and further development of an environment, or relation to the wills of others, its performance is a common good.”47 Dewey’s ethical holism emerges initially from the rejection of Maine’s crude individualism and the Hobbesian social contract theory associated with it, to which we can briefly return. If we begin instead with the conception of a social organism, with the notion that ‘man is essentially a social being’, it follows that democracy in merely numerical guise can only be a pale imitation of collective freedom. Freedom can only be realized within a form of social life that places individuals in community with one another: this, for Dewey, is the meaning of democracy. The merely numerical rationale for democracy, that aggregation of the preferences of ‘ballot-projecting units’ identifies the best outcome, is, in any case, likely to reveal itself inferior to rule by aristocratic elites, with their ‘superiority in wisdom’ and ‘elevation in goodness’.48 Rejecting these distorting abstractions and mechanical notions of the collective will, we must instead conceive of the individual and society in reciprocal and inseparable relation: “the whole lives truly in every member.”49 The root of Maine’s error lies in the pseudo-democratic faith in majority voting: “the heart of the matter” Dewey objects, is found not in voting but “in the process by which the majority is formed,”50 a process of communication that yields a communal consciousness or ‘public’. The liberal individualist error is compounded in identifying democracy as merely a form of government, when it is “infinitely more”:51

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And so democracy is distorted when identified in the individualist worldview with the formal right of suffrage and a faith in the rational “power to shape social relations on the basis of individual volition.”53 “Popular franchise and majority rule,” Dewey notes, in a critique of political ‘fabrication’ that Hannah Arendt would later echo, “afforded in the imagination a picture of individuals in their untrammeled individual sovereignty making the state,” like “puddings to a recipe.”54 But what then distinguishes the ethical basis of democracy as a form of political association? How does democracy bring about the unity of the individual and the state, of the particular and universal, so that the “whole lives truly in every member”? The answer is a matter largely, but not exclusively, of ‘means’ rather than ‘ends’ (the end of achieving harmony between the individual and the state is, Dewey notes, as much an aristocratic as a democratic goal). The ethical ideal of democracy is that men work out for themselves together, not in isolation, their proper relation with the social organism. The democrat differs from the aristocrat in insisting that self-realization is consummated from within rather than paternalistically effectuated from without.55 There is, as Dewey puts it, an individualism in democracy, in the sense that that freedom, responsibility and personality, “cannot be procured” by someone else. But what emerges is an ethical conception of individuality and creative personality, “not a numerical individualism.”56 Individuals, in other words, must liberate themselves, but they can only do so collectively and collaboratively, through means that are in principle and in practice open to all. The spirit of collective self-realization so keenly developed by Dewey means conceiving liberty, equality, and fraternity as social goods and rejecting the negative freedom and formal equality supposed by classical liberalism. A collective consciousness is necessary not only for functioning institutions, but for the aspirations of social democracy to have any purchase at all. It is worth quoting him in full: Fraternity, liberty and equality isolated from communal life are hopeless abstractions. Their separate assertion leads to mushy sentimentalism or else to extravagant and fanatical violence which in the end defeats its own aims. Equality ... becomes a creed of mechanical identity which is false to facts and impossible of realization.... Liberty is ... thought of as independence of social ties, and ends in dissolution and anarchy....

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Brotherhood is practically ignored or else it is a sentimentally appendaged tag.57 “No amount of aggregated collective action of itself constitutes a community,” Dewey reiterates. It is only when persons share in mutual action that community is acquired. This demands communication, which in turn requires the sharing of experience and meaning, through the joint elaboration of signs and mutual construction of symbols. In this way, there might be generated, what, ‘metaphorically’, may be called a general will and social consciousness. 58 This process of translating joint interaction into social meaning and vice versa is never finished. It does not and cannot occur through any ‘natural’ process of commercial exchange, Dewey insists; an insistence that follows from his consistent rejection of the philosophical dualism of nature and spirit. It is, properly speaking, a moral development, dependent upon our intelligence and therefore the role of education, which bridges the gap between nature and social experience.59 Even the democratization of wealth, which follows from the necessity of making democracy “industrial, as well as civil and political” implies not “equal numerical portions” but that industrial relations are to be regarded as “subordinate to human relations.”60 Industrial organization must be made a ‘social function’, and therefore, like institutions and governing arrangements, considered good by virtue of it propensity to enable the conditions of collective self-realization. Economic organization is in an important sense secondary, valued for what it enables, rather than fundamental. This is not to say that the getting and distributing of material benefits are outside or opposed to the life of the citizen, or valued merely a means to a good life, but on the contrary, that work and industry must be thought of in ethical terms themselves. In other words, material economic factors are derivative but not separable: they are a part of the social whole. What therefore emerges from Dewey’s analysis is a need for the exact reverse of the ‘market holism’ (the increasing marketization of common goods and values) that is coming to dominate much contemporary thinking in neo-liberal guise: what is required is an “ethical holism.”61 The institutional implications of this ethical holism and democratic radicalism are admittedly unclear. We have seen that Dewey had no great reverence for established political and social institutions, such as, in his own context, “the Constitution, the Supreme Court, private property, free contract and so on,”62 including, significantly the nation-state.63 The sacredness and fauxreligious aspect acquired by these establishments through the force of unreflective habit and engrained attachment not only blind us to the exploitation that they facilitate but instill a reluctance to reform and fear of experimentation (which are exacerbated by those able to control and manipulate the institutions to maintain the status quo). And, to be sure, one task of public philosophy is to identify institutions and associations that might collectively facilitate the flourishing of human

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potentiality and the full realization of our individuality. What renders politics dysfunctional is an imbalance, or the domination of one sort of association – whether it is “the family, clan, church, economic institutions” – over others.64 But more vital still is an ethical way of life that prefigures political and social institutions and which grounds communal relations by giving context to our forms of communication and to rationality itself. This ethos makes the difference between reflexive custom and mere convention, social habit and mere routine. In other words, restlessness with institutional forms is no more than ‘skin deep’ in Dewey’s pragmatism. It must not be confused with any more deep-seated attachment to fluidity per se, or to the liquidity of late capitalism, which demands constant social revision in pursuit of news means of accumulating wealth. Insistence on the informal significance of communication and ethics is undoubtedly testament to the lingering residue of Dewey’s early attachment to German idealism. The importance of grasping the distinction (as a prelude to understanding the inter-relationship) between institutional and pre-institutional layers is, for example, illustrated in his exposure of the fallacies of identifying the ‘state’ with the ‘government’,65 and in his practical warning that it would be an “illusion” to expect extraordinary change to follow from a mere alteration or adaptation of “political agencies or methods.”66 The outward machinery of governing must not be confused with the idea of the public sphere, which is where the ethics of democracy resides. Democracy is not, for Dewey, to be understood as a particular way of managing communal life: “it is the idea of community life itself.”67 The challenge then in democratizing the modern public sphere lies less in achieving specific institutional reforms and more in “discovering the means by which a scattered, mobile, and manifold public” may recognize itself as a public and express its collective interest.68 For the ‘Great Society’ to turn into a ‘Great Community’ requires collective reflexivity, a “clear consciousness of a communal life, in all its implications.”69 This communal consciousness is not to be mistaken for a concept of ‘the State’ as something mysterious, organic or which transcendentally manifests a ‘general will’ or ‘reason’ of its own.70 It is transparent and dynamic and must permeate all social relationships. This is not only a question of method or form, of public reason, hypothetical agreement or procedures of rational discourse: it must address habits and relationships, as well as the substantive ends that we collectively choose to pursue. It comprises culture and the relations between persons outside of formal institutions and associations, which “deeply affect the attitudes and habits expressed in government and rules of law.”71 It requires not only legislation for the provision of social services, but also socialization of the forces of production: economic relations as much as political ones must be infused with the ethos of democracy.72

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4. A Scientific Project of Emancipation But what are the conditions for this communal consciousness to emerge in practice? How, in historical terms, can Dewey’s critique of modern capitalism and his pessimistic assessment of the fate of the contemporary public be reconciled with a vision of a democratic ethos that permeates all social and economic relations? How might the nurturing of an ethical holism survive a liberal ethic of individualism and compete with the dominance of a market holism that forges massive inequalities of social, economic and ultimately political power? Apparent by the mid-1920s that democratic development would not follow inexorably from social, industrial and political advances, that the public would not automatically assume an emancipatory form, and even that the current trajectory might suggest a stagnation or reversal of ethical progress, the issue of bridging the gap between practice and ideal becomes ever more theoretically problematic and practically pressing. “What are the conditions,” Dewey now asks, “under which it is possible for the Great Society to approach more closely and vitally the status of a Great Community, and thus take form in genuinely democratic societies and state? What are the conditions under which we may reasonably picture ‘the Public’ emerging from its eclipse?”73 Shifting sights from the ethical ideal of democracy to its actual practice in modern society reveals its acute vulnerability, and even a sense of its immanent demise. The model Dewey turns to in order to bridge this gap between the reality and the ideal of democracy is the scientific community of enquiry. Scientific enquiry does not operate with the same logic, goals or values as the market: unlike the egoism and competitiveness that dominate capitalist society, it is collaborative, intellectual, cooperatively organized and has a strong collective dynamic. This is the model that democratic community is to emulate, not only in terms of its experimentalism but also in its focus on intelligent (rather than formally ‘rational’) action and co-operative recreation of social forms. To be sure, this democratic-scientific culture is neither a default position to be presupposed as part of any society nor an a priori aspect of human nature. It needs to be tended to, and its values of openness and experimentation shaped through education. So in order to rekindle ‘the public’, Dewey’s earlier ethical idealism becomes overlaid with an – occasionally ambivalent – faith in science, experimentation and cultural progress through material and technological developments. This faith in the scientific method, and in the possibility of applying its advances not only to physical but also to human facts and relationships is emphatic in the ‘Afterward’ to The Public and Its Problems, written, in 1946, nearly twenty years after the original publication, and in the warm glow of the emerging era of American economic, military and political dominance. 74 But it was already latent in that original work: although noting that “a subtle, delicate, vivid and responsive art of communication” must breathe life into the physical

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machinery of government in order for the ‘Great Community’ to take shape,75 he then continues, jarringly, that when the machine age has “perfected its machinery it will be a means of life and not its despotic master.” Democracy will, he asserts, “have its consummation when free social inquiry is indissolubly wedded to the art of full and moving communication.”76 But this prognosis raises a series of further questions: is full and moving communication now all that is left of the ethics of democracy? How can democratic freedom be consummated with the perfection of mere machinery? What has become of the relentless striving for greater collective self-realization through renewal of the public and the traditions it embodies? These questions must be approached with caution. It is not the case that Dewey’s experimentalism becomes a straightforward call for government by experts. For one thing, technocracy for Dewey is but a novel version of an ancient and outmoded suggestion, of rule by Platonic philosopher-Kings, which was so eloquently, if brusquely, dismissed early on in the “Ethics of Democracy” as antithetical to the democratic ethos.77 In addition to the danger he presciently identifies of intellectuals and experts becoming the “willing tools of big economic interests,” there is the more general objection that the domain of ‘expertness’ – specialized technical matters and matters of administration and execution – assumes that legitimate policies are already in place. To the extent that they “become a specialized class,” experts are “shut off from knowledge of the needs [of society] which they are supposed to serve.”78 The class of experts becomes remote from the common good because it develops its own special interest and private knowledge, “which in social matters is not knowledge at all.”79 Technocracy is both functionally and ethically wanting. 80 Neither is ‘majority rule’ on its own a palliative to the technocratic society. Democracy, recall, is important less for the sake of ‘counting noses’ and more for the sake of compelling prior consultation and discussion to uncover social needs in advance of decision-making.81 Democracy is valued not for majority decision-making per se but for the process by which a majority becomes a majority.82 The electoral process alone cannot accomplish the task of collective self-discovery – of discovering from within our personality and individuality. Technocracy is the new aristocracy, a paternalistic imposition of ‘freedom’ from without, and therefore immediately suspect in democratic terms. Nor has Dewey come to adopt an institutionalism concerned only with the techniques and machinery of governing. Taking procedures, institutions, or governance to be the core of what is needed for democracy is “like confusing the skeleton for the living body of a person.”83 Dewey would undoubtedly concur. The social balance is threatened and expertise rendered pathological not by technological factors alone but by the accompanying ideas or absence of ideas;84 in particular the disjunction between moral beliefs and ideals on the one hand and outward socio-economic conditions on the other, such that the new age has no “symbols consonant with its activities.”85 Understanding social context is crucial in perceiving the balance (or imbalance) between interests and ideas.

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“We have,” Dewey proclaims, “the physical tools of communication as never before.” And yet “the thoughts and aspirations congruous with them are not communicated, and hence not common.” Without such communication and common experience, Dewey warns, “the public will remain shadowy and formless.”86 Improving the institutional machinery will not suffice to prevent the eclipse of the Public, he notes, contradicting the suggestion expressed above that ‘perfecting’ the mechanics of communication might consummate the democratic way of life.87 Democratic realization is about more than merely instrumentally improving or enlarging techniques of communication; it depends upon expressive aspects of our culture, the conditions of shared experience in the sense understood by semiotics: “our babel” Dewey notes, “is not one of tongues but of the signs and symbols without which shared experience is impossible.”88 It is not the techniques of communication that are lacking but common grounds of understanding that enable mutual recognition. The necessary ethos of democracy cannot be constructed from a tabula rasa, or artificially contrived from an aggregation of individual wills. But neither is attachment, for Dewey, organic and ethically evolutionary in any crude social Darwinian sense. It is not to be identified with the natural impulses of affection but with the creative impulses engendered by collective experience. And yet although rejecting technocracy, elitism, majoritarianism, and institutionalism, considering them inapt to remedy the pathologies of modern corporate America and its dominant economic logic,89 and insufficient to revitalize the public, Dewey projects an unshakable faith in the Enlightenment as an ‘unfinished project’. The centrality of tradition, emotion, habit and shared experience to our knowledge and rationality is surpassed by a belief in the scientific method of organized intelligent action and its extension to the democratic arena. By infusing the public with undistorted communication and the discourse of public reason, progress can be achieved on matters of common concern. This is the legacy that is bequeathed to us via Habermas’s own appropriation of strands in American pragmatism. 90 Co-operatively organized intelligence becomes, in current parlance, ‘deliberative democracy’, and consensus can be reached by allowing the ‘unforced force’ of the better argument to prevail.91 The significance of Dewey’s Enlightenment faith in progress through rational enquiry ‘writ large’ can be better grasped if we consider the pathologies of modern capitalism from a historical perspective. This requires disaggregating two things often carelessly lumped together – the results of scientific and technological advances on the one hand, and of a system of legal and moral relations on the other (some aspects of which, like private property, pre-date modern capitalism). Drawing a distinction between the relatively dynamic and the relatively static factors of historical change suggests that industrial revolution and scientific Enlightenment have led to deep structural inequalities – to the appropriation of the fruits of development by “a relatively small class” – because of the stasis of conditions that were set by the prevailing legal

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institutions and moral ideas.92 Utilizing these static arrangements, industrial entrepreneurs have been able to reap “out of all proportion to what they sowed” by obtaining and controlling legal ownership of the means of production, 93 and rigidly institutionalizing the power of the few over the many. The rapid ascendancy of science, the acceleration of technological developments, massive increases in productivity and the elimination of distance through inventions ranging from the locomotive to the telegraph were the “genuinely active forces” in producing the massive world-historical changes associated with modernity. But because scientific advance has been conditioned and curtailed by the relatively static aspects of the capitalist age the Enlightenment has not been able to realize its full social and human potential. The age of modern capitalism, in other words, has certain ideas and institutions inimical to progress revolutionized but others, equally hostile to progress defended with reactionary zeal. For Dewey, the first, the spirit of enquiry and co-operatively organized intelligence (largely scientific and technological), must be historically extricated from the second, the stubbornly regressive institutions of liberal individualism (largely political and legal); the former can also in practice infiltrate and conquer the latter, liberating the public. Dewey’s diagnosis of the crisis of his times is not of a tension between antagonistic economic or class interests or competing political forms but between the active forces of scientific enquiry and technological application on the one hand and regressive forces of “older institutions and the habits that have grown up around them” on the other.94 Social progress is the result of cooperation rather than conflict; just as oppression is the result of “the perpetuation of old institutions and patterns untouched by scientific method.”95 To remedy the imbalance between outmoded legal and political institutions on the one hand and innovative scientific procedures on the other, Dewey argues for greater ‘impartiality’ in all forms of discussion and persuasion and, above all, freer use of scientific method throughout society. Stressing the beneficial effects on all types of social problem-solving of an ‘entanglement’ of the scientific community with the broader democratic public is an aspect of the ethos of pragmatism more generally understood.96 Central to this entanglement is the opening up of legal and political institutions, including substantive relations such as property and contract, to the scrutiny of democratic debate and the ‘full blast’ of public interests and opinions.97 But even if the dynamic potential of scientific development might be extricated from the pathologies of modern capitalism in the way Dewey suggests, and be spread to social, economic and political domains, further questions remain: How in practice does the intelligent interaction that characterizes scientific enquiry re-illuminate a democratic public that is becoming eclipsed by the politics of liberal individualism? Who would act to bring about this transition, and to disrupt existing power relations, in view of the apparent obstacles set by existing legal and political forms and in light of the

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huge imbalances of socio-economic power? What, in other words, is the politics of democratic experimentalism? 5. The Politics of Democratic Experimentalism Faith in reform through social experimentation and scientific collaboration leads Dewey to reject emphatically the project of violent or revolutionary political struggle, as well as, albeit less emphatically, piecemeal political change. 98 The attempt to explain the crisis of his times using the notion of class struggle (‘whose spirit and method are opposed to science’)99 fails to discriminate between the progressive and regressive features of the modern age; lumping together both as aspects of the ascendancy of the bourgeoisie occludes the disaggregation of technological advance from legal-political stagnation that is so central to diagnosing contemporary ills and liberating the potential of the scientific Enlightenment. Just as classical liberals mistakenly attribute all improvements to the regime of modern capitalism, their Marxist antagonists, conversely, tend mistakenly to attribute all social degradation to it. Neither class and political struggle (particularly party politics and its ‘factions’, which are merely the counterweight to numerical and atomistic individualism), nor free-market capitalism based on individual exchange is an institution of real progress. Instead, the scientific method and comprehensive and intelligent planning are the motors driving development forward (and often in spite of prevailing legal and political conditions).101 Dewey insists that conflicting interests, even objective conflicts, such as those between the owners of the means of production and “idle workers and hungry consumers,” can properly be resolved by the method of democracy, by which he means bringing them in to the open and shining a light on them: thus following a scientific rather than a political logic.102 But there is a tension between Dewey’s insistence that change not be violent or revolutionary but based only on intelligent co-operation and his recognition of the implicit or ‘veiled’ violence inherent in maintaining the current regime and the economic interests of those who control its resources and institutions.100 Those who criticize the use of (revolutionary) force are often the first to employ its use in the maintenance of the existing institutions they support or which economically and politically benefit them. How can radical change be brought about in view of this forcefully protected intransigence? Failing to account for the conditions that would bring those in power to ‘expose’ themselves to the logic of democratic methods and to consider the obstacles that might prevent others from doing so, Dewey echoes the same liberal idea he so fiercely disparaged: implying a formal account of a ‘free market place of ideas’, where each has a formally equal opportunity to affect the social and political outcome. He supposes, for example, that because a distortion of communication could only be effected by a minority it would necessarily be remedied, all things being equal, by a more powerful and enlightened majority;

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the method of intelligent action would trump the organized coercion that is utilized by the few to maintain a system of power over the many: It is true that the social order is largely conditioned by the use of coercive force, bursting at times into open violence. But what is also true is that mankind now has in its possession a new method, that of cooperative and experimental science which expresses the method of intelligence.103 This new method demands a new type of analysis. Both radicals and conservatives, who converge in agreement that change can only be brought about in the future the same way it has in the past – violently – “overlook the fact that history in being a process of change generates change not only in details but also in the method of directing social change.”104 But there is no analysis of this change in method and how it can extricate itself (either as a matter of institutional practice or conceptually) from the individualism and rationalism that he had so thoroughly dismissed as not only inadequate but antithetical to the emergence of a ‘Great Community’. The corrosive materialism of our times does not proceed from science. It springs from the notion, sedulously cultivated by the class in power, that the creative capacities of individuals can be evoked and developed only in a struggle for material possessions and material gain. 105 Although persuasive to a degree, Dewey gives us little reason to suppose that science alone can avoid such ideological corruption, let alone that it can reverse the “sedulously cultivated” and “corrosive materialism” that has infected our social relations in modern capitalism. Dewey himself had so perspicuously identified the problem with regard to the market ideology of early liberalism: it mistakenly regarded the separate and competing economic action of individuals as the means to achieve social well-being in the end, whereas in fact the “socialized economy” is the means of achieving the end of “free individual development.”106 But it is doubtful that a socializing of the economy is something that can or will be brought about by a scientific logic or method alone. How in practice can the method of intelligence triumph over the reactionary use of veiled but ultimately coercive force in protecting established interests? By insisting on such a sharp antithesis between “the method of intelligence” and the “method of violence,”107 Dewey overlooks a third ‘method’ or, rather, form of power that, as a phenomenon, is neither purely ‘scientific’ nor purely ‘violent’: political power. Introducing the concept of the political into the mix is intended not only to highlight ‘non-scientific’ or ‘non-experimental’ methods of instigating social change – such as direct or indirect political action – but to provide a perspective from which to query whether scientific development (like its market analogue) is as pure and undistorted as Dewey suggests. Are ‘political and scientific communities’ really amenable to such sharp

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conceptual separation? Should we not be inviting an analysis of the new forms of power that technological and scientific developments bring in their wake? In refusing this invitation, Dewey occludes questions of power that he otherwise was so alert to in his critique of classical liberalism and the dangers of its ideological commitment to the atomistic individual. The ideal of a scientific community of enquiry working publicly through a free marketplace of ideas where only intelligent argument reigns, promises ‘democracy without politics’. But this ignores that the scientific community is unlike the ‘imperfect’ democracy community, having none of its “struggle and power dimensions.”108 And even if the logic and methods of science could plausibly be extended to the democratic community, a ‘free marketplace of ideas’ hardly depicts the reality of scientific development itself. It is not only that scientific experimentation is liable to become co-opted by the same corporate economic power that Dewey recognized to have such a malign influence on the political scene. From a historical perspective, the increasing politicization of science after World War II, continuing at an accelerated pace today, made any divorce of science and politics implausible. There was in any case no guarantee that experimentalism would be used for liberal or democratic purposes. It was, in fact, more likely that science would become politicized than that politics would become ‘Enlightened’. “The actuality,” Sheldon Wolin notes, “was that experimentalism would be embraced, selectively, by conservative foundations and think-tanks and put into policy and practice by anti-liberal administrations. The result ... would be a new breed of political men.”109 Dewey himself was of course not to know what would become of his experimentalism; but this ignorance is not a luxury we have today. The point is not primarily to expose the reality of the politics of the new scientific community of enquiry and its own brand of ideological power. It is to underline that the combined effect of moralizing communal association and neutralizing the procedures of democracy is the depoliticization of the democratic struggle itself. ‘Political democracy’ becomes the result of fortunistic eventualities, the ‘cunning of history’, emerging haphazardly and spontaneously “as a kind of net consequence of a vast multitude of responsive adjustments to a vast number of situations ... which tended to converge to a common outcome.”110 Absent is any analysis of the political struggle that characterizes the series of modern revolutions beginning in the late eighteenth century in France and North America and continuing via the Paris Commune, the creation of Soviets during the Russian revolution and the French Resistance during World War II – which show that individual men and women could “step forward from their private lives in order to create a public space where freedom could appear.”111 Nowhere is there a historical acknowledgement of the significance of political freedom as it makes its appearance in the world, a phenomenon outlined so powerfully by Hannah Arendt in her work on revolution, and which expresses the most vital because most distinctively human aspect of the human condition: political action.112 The radical novelty that modern subjects consider

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themselves rulers – that ‘we, the people’ are the new foundations of political authority – is passed over in silence. So for all that Dewey emphasizes face-to-face association and participation in problem-solving forums, he neglects the politics of collective autonomy, and the political dimension of his own brand of democratic experimentalism based on scientific enquiry. Since Deweyan democracy is about communicating experiences and experiencing communication, rather than exerting political influence or struggling over the distribution of political power and economic resources, the existence of conflict between persons or institutions appears predominantly to be due to a lack of understanding or information rather than to any genuine conflict of ideas or clashes of real interests. 113 Little attention is paid to how new political forms create and recreate structures of social power and vice versa, or how in practice to remedy asymmetries of information and unequal access to technologies. To remove the barriers to consensus requires only the unleashing of scientific methods of enquiry into the political domain. “The reign of opinion, and of controversial conflicts,” Dewey argues, “is a function of absence of methods of inquiry which bring new facts to light and by so doing establish the basis for consensus of beliefs.”114 This conveys the sense – continued in the Habermasian tradition of ‘rational consensus’ or agreement in conditions of ideal discourse – that if only we had the right methods and full information we would necessarily agree with one another. 115 The result of identifying democracy with a scientific method is “to homogenize democratic action while stripping it of dissonance.”116 In other words, democratic action, or what has been called praxis, is replaced by a scientific contest over the most efficient or rational means to an end we are all agreed upon. There is no genuine contest over distinct ends, or over the desired political form to achieve them. Although experimentalism is by no means a straightforward elevation of instrumental rationality because of the inter-dependence of means and ends in Dewey’s philosophy, it does suggest that prevailing ‘ends’ do not need radical alteration because they are relatively uncontroversial or at least that they would be under idealized conditions of communication. How such idealized conditions can be achieved in practice – in spite of the veiled structural coercion that Dewey recognizes exists in support of the existing institutions and configurations of power – is never explained. This critique requires some moderation. Dewey himself was concerned with political forms and how these might come into being or be replaced with new political forms in the broad sweep of history.117 The substitution – after the destruction wrought by the First World War and the subsequent rise of Italian Fascism and German Nazism – of categories associated with German idealism such as the ‘sovereign people’ with the more modern notion of ‘the public’ would require the ‘breaking’ of existing political forms, he stressed. 118 And it would require the rethinking of democracy, which had been destroyed in Europe, or so the pragmatists believed, because it had become too political, in the sense of being monopolized by politicians and parliaments rather than

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becoming part of the ethos of the people in their daily habits. 119 In the US, democracy has merely become repressed because the impersonal relations of the Great Society have in practice replaced small local town meetings, individuals are now held together remotely only through the advances supplied by modern technologies rather than personally through the culture of shared experience. Alert from an early stage to the broader differences of social context and political form that would condition the emergence of democracy in different settings, Dewey, in his early work on German philosophy strongly differentiates the United States from Europe in terms of the distinct type of state that is emerging and suggests that the situation in the United States, unlike Europe, is congenial to experimentalism because it is a comparatively new society and culturally heterogeneous from the outset.120 But this attunement to distinct social and cultural concerns is compromised by privileging a scientific mentality that neglects the contexts of political power and the significance of the phenomenon of political action. 6. Conclusion Must we therefore conclude that Dewey’s society “appears fixated on the findings of method, the conduct of experiments, and the communication of results,” leaving indeterminate “questions of how problems become identified, who controls the communication of results, and who evaluates the consequences”?121 Fixation on methods of problem-solving ignores or even conceals the significance of problem-identifying and problem-constituting, questions which require a political analysis of intelligent (and unintelligent) individual and collective action.122 How is Dewey’s idealistic scientific community of enquiry to be democratized in practice, in view of the eclipse of the public he anticipates? There is, it seems, ultimately a disconnect between Dewey’s commitment to an ethical democratic community based on face-to-face interaction and shared experiences and his faith in the experimentalist society based on the model of scientific learning and problem-solving.123 Scientific methods and technological innovations might exacerbate the alienation of citizens if issues of governing become incomprehensible to the vast majority and technology increases their dependence on others. And they do little or nothing to reduce the socioeconomic inequality that is so detrimental to the democratic ethos. Scientific enquiry and enlightenment might appropriately drive forward technological and economic advances, but not ethical and democratic progress. The project of expanding the logic of the community of scientific enquiry to the democratic arena might be powerless at best and in danger of furthering the eclipse of the public already threatened by the logic of market holism and the socio-economic inequalities of the capitalist regime at worst. Dewey fails to anticipate that the inequalities in power arising from the conditions of modern capitalism might even be aggravated rather than assuaged by the increasing claims to expertise that flow from the dominance of the scientific community

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over another community about which Dewey is relatively quiet: the political community. Who will convert the ‘Great Society’ into the ‘Great Community’ and what kind of institutional and political obstacles are in the way? Does the project of experimentalism anticipate the democratization of science or rather the scientific (and ultimately economic) rationalization of democracy? It is here that questions of the power and politics, not only of democracy, but also of scientific development, come to the fore.124 Any philosophy that professes faith in Dewey’s pragmatism and Deweyan democracy should clarify its position on these questions, either to reject explicitly their implications in defense of Dewey or to devote more attention to addressing where Dewey might have erred in expounding on them. There is, it is assumed here (rather than fully argued), also good reason independently of any allegiance to Dewey to confront these issues because they are key to the development of a public philosophy that is committed to democracy in the modern age. Whether they then ultimately call for a reconsideration of, or rather speak out in opposition to democratic experimentalism, others can decide. And yet, to conclude, it is worth emphasizing that Dewey himself was aware of the limitations of scientific enquiry in an important but neglected respect. Because contemporary science tends to disconnect elite or specialized knowledge and enquiry from the common man,125 Dewey is cautious about assimilating human sciences and physical sciences. His injunction that “thinking and beliefs should be experimental, not absolutistic” intends a certain similar logic of method, not the literal analogy of carrying out social experimentation “like that of laboratories.”126 And although there is in Dewey’s pragmatic methodology a strong focus on experimentation – on the continual revising of means and ends in the light of mutual experience – the grounds of communal interaction and collective self-understanding must have a creative, aesthetic dimension, which is absent in the physical sciences. “The function of art,” Dewey notes, “has always been to break through the crust of conventionalized and routine consciousness.”127 The same might be said of political action. And by art, Dewey has something unaffected and humanist, rather than complex, elitist or esoteric, in mind: “Common things, a flower, a gleam of moonlight, the song of a bird, not things rare and remote, are means with which the deeper levels of life are touched so that they spring up as desire and thought.”128 Art for Dewey, like democracy, was a continual, creative experience that involved the viewer as much as the object: not a finished project to be beheld in a gallery, representing some exterior event or object. 129 To be faithful to Dewey is also to imagine how to adapt the project of democracy to circumstances that differ markedly from his own and to confront these circumstances in a radical and not merely instrumental or institutional manner. Creative as much as scientific means must be employed in order to renew the communal consciousness necessary for the ethics of democracy to flourish and the public to survive.

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ACKNOWLEDGEMENTS For comments on earlier drafts I would like to thank, with the usual disclaimer, Anne Barron, Damian Chalmers, and Martin Loughlin.

NOTES 1. The literature is now vast. Two representative publications are C. Sabel and M. Dorf, “A Constitution of Democratic Experimentalism” Columbia Law Review 98 (1998), p. 267, and, in the European context, C. Sabel and O. Gerstenberg, “Directly Deliberative Polyarchy: An Institutional Ideal for Europe?” in Good Governance in Europe’s Integrated Market, ed. C. Joerges and R. Dehousse (Oxford: Oxford University Press, 2002). Specifically on the influence of John Dewey on the new pragmatism, see William H. Simon, “The Institutional Configuration of Deweyan Democracy,” in this volume. 2. See e.g. Stephen K White, “The Very Idea of a Critical Social Science: a Pragmatist Turn” in Cambridge Companion to Critical Theory, ed. F. Rush (Cambridge, UK: Cambridge University Press, 2004). 3. Sheldon Wolin, Politics and Vision (Princeton, N.J.: Princeton University Press, 2004), p. 517. 4. Dewey describes laissez-faire as the ‘Achilles Heel’ of liberalism in Liberalism and Social Action (Amherst, N.Y.: Prometheus, 2000), p. 60, (henceforth LSA). He also remarks on the problems of laissez-faire in other fields such as science itself, see LSA, p. 50. 5. Dewey’s radical and democratic socialist convictions “remained intact until his death” according to R. Westbrook, John Dewey and American Democracy (Ithaca, N.Y.: Cornell University Press, 1991), p. 458. 6. According to Matthew Festenstein, Pragmatism and Political Theory (Cambridge, UK: Polity Press, 1997), p. 78: Dewey’s view of science as an appropriate model for political authority “is based not on a sociological understanding of the workings of scientific communities but on the moral assertion that the practices of free communication, diffusion of information and rigorous testing of conjectures are desirable characteristics which are reproduced in democracy; and it is because these features are embodied in scientific communities that the latter are thought to unify freedom and authority.” 7. Barry Allen, “Experiments in Democracy,” this volume, p. 82. 8. J. Dewey, “Ethics of Democracy” in John Dewey: The Early Works, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1969), pp. 231–232 (henceforth ED). 9. ‘Individualism’, Dewey argues, is also unable to secure real freedom. See e.g. J. Dewey and J. Tufts, Ethics (New York: Henry Holt, 1909), pp. 529–530. In Outlines of a Critical Theory of Ethics (Ann Arbor, Mich.: Register Publishing Co., 1891), p. 188, Dewey explicitly acknowledges the large debt he owes to Hegel. On the links between Dewey’s (as opposed to William James’s) pragmatism and German idealism (and later the evolutionary socialism of the Fabians) see M. Stears, Progressives, Pluralists and the Problem of the State (Oxford: Oxford University Press, 2002), pp. 46–47. 10. He notes that although Maine rejects the social contract, “he keeps the fundamental idea, the idea of men as a mere mass, which led to it,” ED, p. 231.

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11. On the interdependence of liberalism and communitarianism in Dewey’s work, see R. Bernstein, “John Dewey’s Vision of Radical Democracy” in The Pragmatic Turn (Cambridge, UK: Polity Press, 2010), pp. 70–88. 12. Language, Dewey notes, “functions as a natural bridge that joins the gap between existence and essence,” quoted by C. Deutschmann, “A Pragmatist Theory of Capitalism,” Socio-economic Review 9 (2011), p. 85. A common symbolic universe, depends upon the social order but can only be reproduced, changed or transformed by individual action. 13. J. Dewey, The Public and Its Problems (New York: Henry Holt, 1927) henceforth ‘PP’. 14. PP, p. 89. Utilitarianism, he notes, although protesting against the latter idea was helpless to prevent this popular but dysfunctional amalgam from acquiring its powerful position, PP, pp. 90–94. 15. See for example PP, p. 96, 102. 16. Millian liberalism with its unconditioned individual is logically absolutistic, and as dogmatic as the blinkered social collectivism it opposes; PP, p. 195. 17. “Mills own contention that psychological laws of the kind he laid down were prior to the laws of men living and communicating together, acting and reacting upon one another, was itself a political instrument forged in the interest of criticism of beliefs and institutions that he believed should be displaced.” LSA, p. 49. 18. LSA, p. 42. 19. PP, p. 98. 20. LSA, p. 43–44. 21. PP, p. 95. 22. PP, p. 95. 23. PP, p. 96. 24. J. Habermas, Theory of Communicative Action (Cambridge, UK: Polity Press, 1987), p. 193, quoting from Max Weber, The Social Psychology of the World Religions. 25. PP, p. 102. To adherents and opponents alike, individualism falsely “presented the spectacle of a pulverizing of established associations into the desires and intentions of atomic individuals,” PP, p. 101. 26. “The rise of national polities that pretend to represent the order, discipline and spiritual authority that will counteract social disintegration is a tragic comment upon the unpreparedness of older liberalism to deal with the new problem which its very success precipitated,” LSA, p. 59. He notes that despotic regimes are “in large measure merely the agent of a dominant economic class in its struggle to keep and extend the gains it has amassed as the expense of genuine social order, unity and development” ibid. On the forces producing individualism, see, J. Dewey and J. Tufts, Ethics (New York: Henry Holt, 1909), pp. 75–80. 27. PP, pp. 99–100. 28. PP, pp. 100–101. 29. LSA, p. 86. 30. PP, pp. 107–108. 31. Income inequality in the US peaked around 1929, not long after Dewey writes The Public and Its Problems, and at a level that is being closely approached today. For a contemporary assessment of the pernicious effects of economic inequality on equal representation in the political arena see M. Gilens, “Under the Influence” Boston Review (July-August 2012).

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32. LSA, p. 45. Dewey calls the idea of a pre-established harmony between capitalism and democracy “as absurd a piece of metaphysical speculation as human history has ever evolved” in Freedom and Culture (New York: Putnam, 1939), p. 72. 33. See PP, p. 182: “as long as interests of pecuniary profit are powerful, and a public has not located and identified itself, those who have this interest will have an unresisted motive for tampering with the springs of political action in all that affects them.” And earlier, PP, pp. 137–138, expressing a concern that with the expansion of industry and overwhelming rise of industrial currents and the conditions they bring along, that ‘politics’ tends to become just another ‘business’: “the especial concern of bosses and the managers of the machine.” 34. LSA, pp. 43–44. 35. LSA, p. 59. 36. LSA, pp. 63–65. 37. PP, p. 139. 38. PP, p. 158. Dewey, along with William James, rejected the rationalism and atomistic empiricism of the British Utilitarians. See e.g. Dewey, The Quest for Certainty: A Study of the Relation of Knowledge and Action (London: George Allen and Unwin, 1929), pp. 245–247, 271 (henceforth QC). Exploring Dewey’s critique of the hedonism and psychological flaws of utilitarian ethics, see Westbrook, n. 4 above, pp. 153–157, and Festenstein, n. 5 above, pp. 57–58. Dewey speaks of the “fundamental defects” in Bentham’s underlying idea of human nature, whilst recognizing that Bentham’s brand of liberalism brought about radical social change of a sort he sympathized with (LSA, p. 25). 39. Dewey explicitly rejects the ‘spectator theory of knowledge’ associated with liberalism and its quest for complete certainty by separating theory and practice. See, e.g., QC pp. 196, 270. See also F. Dallmayr, “Democratic Action and Experience: Dewey’s ‘Holistic’ Pragmatism” in The Promise of Democracy (Albany: State University of New York, 2010), pp. 43–65, who stresses Dewey’s prioritizing of experience over cognition, and his emphasis on the unity of action and knowledge. These are themes that have been reprieved in a strand of German scholarship that has tried to unite American pragmatism with the Frankfurt school tradition of critical theory: see e.g. Joas, The Creativity of Action (Cambridge, UK: Polity Press, 1996), and Honneth, Reification: A New Look at an Old Idea (Oxford: Oxford University Press, 2008) on Dewey’s sense of the pre-cognitive significance of affect, action and culture, etc. 40. PP, p. 158. 41. Ibid. 42. Ibid. 43. QC, p. 269. 44. Ibid., p. 269. 45. Which is not to say that Dewey conflates individualism and Kantian subjectivism. On the contrary, see Dewey’s German Philosophy and Politics (New York: Henry Holt, 1915), p. 49; they are, he notes, in “sharp opposition.” 46. Outline of a Critical Theory of Ethics, n. 9 above, p. 118. 47. Ibid., p. 117. 48. ED, p. 233. 49. ED, p. 237. 50. ED, p. 234. 51. ED, p. 240. 52. ED, p. 240.

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53. PP, p. 101. “The same forces which have brought about the forms of democratic government, general suffrage, executives and legislators chosen by majority vote, have also brought about the conditions which halt the social and humane ideals that demand the utilization of government as the genuine instrumentality of an inclusive and fraternally associated public. ‘The new age of human relationships’ has no political agencies worthy of it. The democratic public is still largely inchoate and unorganized.” PP, p. 109. 54. For an exploration of Hannah Arendt’s critique of ‘fabrication’ or constitution-making, see M. Wilkinson, “Between Freedom and Law: Hannah Arendt on the Promise of Modern Revolution and the Burden of the Tradition” in Hannah Arendt and the Law, ed. M. Goldoni and C. McCorkindale (Oxford: Hart, 2012), pp. 35–62. 55. It was this insight, moreover, that permitted rejection of the paternalism and social engineering of the Fabians on the other side of the Atlantic, see Stears, above n. 9. This is not to say, however, that Dewey dismissed the role of the State. On the contrary, there are no inherent limits to state action, but neither are there inherent prescriptions for it. 56. ED, p. 244. 57. PP, p. 149. 58. PP, p. 153. 59. Dewey’s faith in education is an important factor in his rejection of any crude historical materialism, which ignores or downplays the transformation of meaning through the equitable distribution of knowledge that is possible in education and “animated by an informed and lively sense of a shared interest,” PP, p. 156. 60. ED, p. 247. 61. “That the economic and industrial life is in itself ethical, that it is to be made contributory to the realization of personality through the formation of a higher and more complete unity among men, this is what we do not recognize; but such is the meaning of he statement that democracy must become industrial,” ED, p. 248. 62. PP, p. 170. 63. Ibid. See also LSA, p. 51, connecting nationalism with Hegel’s “idealistic theory of objective spirit” and then the contemporary totalitarian state. 64. PP, p. 194. 65. See, e.g., PP, pp. 66–67, PP, pp. 27–28. And in a related manner, see his early critique of Austin’s notion of sovereignty, J. Dewey “Austin’s Theory of Sovereignty,” Political Science Quarterly 9 (1894), pp. 31–52. 66. PP, p. 68. 67. PP, p. 148. 68. PP, p. 146. 69. PP, p. 149. 70. PP, p. 68. 71. Wolin, above n. 3, p. 515. 72. See, e.g., LSA, p. 88. 73. PP, p. 157. 74. PP, p. 229: “the most direct and effective way out of the [evils of present life] is steady and systematic effort to develop that effective intelligence named scientific method in the case of human transaction.” 75. PP, p. 184. 76. PP, p. 184.

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77. ED, pp. 240–245. Hannah Arendt also argued that the notion of expertise entered political philosophy through Plato; see Between Past and Future: Eight Exercises in Political Thought (New York: Penguin, 1968), p. 111. Dewey later reprieves this critique in PP, p. 205. 78. PP, p. 206. 79. PP, p. 207. 80. The Public and Its Problems was, of course, written at least partly in response to Walter Lippmann’s elitism of The Phantom Public. See, e.g., Westbrook, above n 5., pp. 299–300. 81. “No government by experts in which the masses do not have the chance to inform the experts as to their needs can be anything but an oligarchy managed in the interests of the few’. PP, p. 208. Expertness is not shown in framing and executing policies, but in discovering and making known the facts upon which the former depend.” PP, p. 208. 82. This focus on deliberation prior to decision-making is what Habermas borrows directly and explicitly from Dewey in J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, UK: Polity Press, 1996), p. 304. 83. Gregory Pappas, in this volume, p. 70. 84. PP, p. 141. 85. PP, p. 142. 86. PP, p. 142. 87. PP, p. 144. 88. PP, p. 142. 89. Dewey’s celebration of the scientific method and his faith in problem-solving and experimentation must not be mistaken for an indifference to the pathologies of modern capitalism and its mania for change, motion and speed. He was palpably concerned that the increasing acceleration of mobility and of social and economic upheaval affecting society in the later stages of capitalism would render the public unstable, disorganized, dysfunctional, and damaged at its roots, by undermining the attachments that are nourished in more “constant relationships,” PP, p. 141. 90. On the significance of the pragmatist philosophy of C. S. Peirce and George Mead in the development of Habermas’s theory of communicative action, see Habermas, The Theory of Communicative Action, vol. 2 (Cambridge, UK: Polity Press, 1987). 91. J. Habermas, n. 82 above, pp. 305–306. 92. LSA, p. 77. These are the conditions of modern capitalism, which for Dewey roughly designates “a complex of political and legal arrangements centering about a particular mode of economic relations,” Ibid. 93. LSA, p. 78. 94. LSA, p. 79. 95. LSA, p. 83. ‘Great social changes’ have been brought about more by these scientific developments than by violent struggle. 96. Stephen K. White, n. 2 above. 97. See O. Gerstenberg and C. Sabel, above n. 1, at 317, commenting on Frank Michelman’s ‘romantic constitutionalism’. 98. LSA, p. 66. Piecemeal political change would not, for Dewey, be radical enough to bring about the required social transformations. 99. LSA, p. 77. 100. LSA, p. 69.

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101. LSA, pp. 74–75. 102. LSA, p. 81. 103. LSA, p. 84. 104. LSA, p. 84. 105. LSA, p. 89. 106. LSA, p. 90. 107. LSA, p. 80. 108. Stephen K. White, n. 2 above. 109. Wolin, n. 3 above, p. 518 110. Ibid., p. 512. 111. M. Passerin D’Entreves, The Political Philosophy of Hannah Arendt (London and New York: Routledge, 1994), p. 68. 112. See H. Arendt, On Revolution (London: Penguin, 1963) and The Human Condition (Chicago: University of Chicago, 1958). 113. See also Festenstein, n. 6 above, p. 79. 114. Quoted by Wolin, n. 3 above, p. 517. 115. See Habermas, n. 82 above. 116. Ibid. 117. See for example PP, pp. 30–31: “to form itself the public has to break existing political forms. This is hard to do because these forms are themselves the regular means of instating change.... This is why the change of the form of states is so often effected only by revolution.” 118. Wolin, n. 3 above, p. 511. 119. Ibid., p. 513. 120. See Dewey, n. 45 above, pp. 129–130. 121. Wolin, n. 3 above, p. 517. 122. These are the questions that have been reduced to one identified as Lenin’s: who, whom? “who does what to whom for whose benefit”? See R. Geuss, Philosophy and Real Politics (Princeton, N.J.: Princeton University Press, 2008), p. 25. 123. Wolin, n. 3 above, p. 517. 124. As Alexander Somek puts it tersely, “problem-solving is the antithesis of political struggle,” in The Twilight of Constitutionalism, ed. M. Loughlin and P. Dobner (Oxford: Oxford University Press, 2011), p. 279. 125. See, e.g., PP, pp. 172–176. 126. PP, p. 202. 127. PP, p. 183. Dewey’s concern to establish a connection between art and everyday life in terms of the creativity of all experience if explored by H. Joas, above n. 39, pp. 138–140. 128. PP, pp. 183–184. 129. See H. Joas, above n. 39, p. 139.

Michael A. Wilkinson London School of Economics and Political Science Department of Law Houghton Street London WC2A 2AE United Kingdom

Contemporary Pragmatism Vol. 9, No. 2 (December 2012), 143–157

Editions Rodopi ©2012

Producing Publics: Dewey, Democratic Experimentalism, and the Idea of Communication Amy J. Cohen

In a volume dedicated to celebrating and interrogating the pragmatic – and especially Deweyan – roots of democratic experimentalism, this essay explores some of the more elusive aspects of Dewey’s ideas of communication. It argues that for Dewey, the question of communication was not how speakers should make their interior thoughts and desires transparent and understandable to others but how they could produce shared social contexts – that is, publics – and with them new forms of democratic self-governance. The essay thus suggests that Dewey’s understanding of communication diverges from one that is more familiar in popular problem-solving discourses in law. For example, in predominant strands of alternative dispute resolution communication is understood primarily as a neutral technique used to bridge the mental properties of individuals whatever their aims, rather than, as Dewey would have described it, a means and end of a good society and thus a deeply normative and political practice. By comparing divergent ideas of communication in law, the essay aims to open up for analysis and debate whether and how democratic experimentalists understand communication not like traditional models of popular legal problem solving, but rather like Dewey: as a method of social life that calls publics into being.

1. Introduction In his article for this volume, William Simon observes foundational overlaps between Deweyan political ideals and the contemporary field of legal problem solving often called new governance or democratic experimentalism. Simon argues that many of the practical implications of Dewey’s ideas have remained elusive. But he also suggests that new institutional innovations in business and policymaking, which he describes under the sign of democratic experimentalism, make more concrete “the key aims and insights of Dewey’s vision.”1 In this short essay, I consider one of the questions that Simon argues Dewey left unanswered. The question, in Simon’s words, is this: “How do we organize deliberative engagement to produce productive collaboration among people with diverse interests?”2 This is a pressing question for democratic experimentalists

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who propose to restructure the institutions of public governance through communicative acts of bottom-up problem solving and lawmaking. Drawing on analyses of Dewey from within the field of communication studies, I explore whether and how democratic experimentalists offer a distinctively Deweyan model of communication. For Dewey, communication was a very particular – and political – social good. It was both a means of producing publics and the activity that made those publics meaningful. Or to put the point a bit differently, for him, communication was a means of creating social feeling and binding people together that could not be separated from questions of a good society. In this sense, the essay argues, Dewey’s understanding of communication diverges from an idea of communication that is more familiar in popular problem-solving discourses in law. Rather than a neutral technique used to resolve disputes and join the interior thoughts of individuals by generating transparent understandings and agreements, Dewey understood communication as a shared social and political endeavor that creates new possibilities for democratic self-governance. To illustrate this difference between the Deweyan conception and a more familiar legal model, the essay briefly compares Dewey’s ideas of communication with some of the predominant ideas of communication that have developed in alternative dispute resolution (ADR) – an important and perhaps the most institutionalized practice of popular problem solving and decision making in law. It does so in order to open up for analysis and debate the ways in which democratic experimentalists understand communication not like traditional ADR theory, but rather like Dewey: as a method of social life that calls publics into being. 2. Dewey and Democratic Experimentalism To begin, let me sketch how scholars of democratic experimentalism build upon Dewey’s model of public problem solving through deliberative means. Both Dewey and democratic experimentalists start with the idea of multiple, fragmented, overlapping publics. The claim, more provocative in Dewey’s time and more commonplace today, is that society comprises not “a single organization” but rather “many associations.”3 For Dewey, associations become public and social when the individuals who comprise them are affected in similar ways by the political and economic conditions that shape their collective well-being and, moreover, when they recognize this to be the case.4 Democratic experimentalists, in turn, revive Dewey’s emphasis on common interests and interdependence (not necessarily identitarian or nationalistic ties) as the proper basis of public life.5 The salient feature in common is that, for both, the conditions for publics to emerge happen when people experience the shared consequences of a complex and globalized order as well as the possibilities of beneficial collaboration to care for the collective good within this order. 6 Not surprisingly, Dewey and democratic experimentalists thus devote a good deal of thought to how multiple and fragmented publics should organize

Producing Publics: Dewey, Democratic Experimentalism, Communication 145 themselves as well as coordinate with other publics.7 Publics, Dewey argued, must organize themselves not simply to meet their interests but first to perceive, distinguish, and define them – and they must do so under conditions where the consequences of joint activities are widely suffered but their origins are often unknown.8 As a result, local organization, although necessary, is not sufficient to address the widespread effects of modern social problems that extend beyond delimited geographical spaces. In the United States, Dewey argued, “we have inherited ... local town-meeting practices and ideas. But we live and act and have our being in a continental national state.”9 Democratic experimentalists similarly do not focus on only local instances of problem-solving but rather on “the relation of … particular problem-solving ‘publics’ ... to each other” as well as to “a public sphere that includes them all.”10 Thus for Dewey and democratic experimentalists alike, publics, even local ones, require the coordination of a national system of governance. But because both Dewey and democratic experimentalists begin with the fact of multiple, overlapping publics, both cast state governance as a source of management, not control. Both reason that local publics are better positioned than technocratic elites to identify and evaluate common concerns, but that the state is better positioned to coordinate and manage the effects of interdependent associations on behalf of social wellbeing.11 Dewey thus likened the state to a “conductor of an orchestra” whose primary role is to “foster and coordinate the activities of voluntary groupings.”12 That said, for Dewey (as for democratic experimentalists) the state is not a neutral umpire empowered simply to adjust conflicts among disputing associations.13 To the contrary, it is entitled actively to “fix [the] conditions under which any form of association operates” and to administer the consequences of joint behavior.14 Significantly, however, Dewey did not attempt to set forth the functions that the state legal and political systems should perform in any definitive manner. He instead maintained that the scope of the state’s responsibilities was “something to be critically and experimentally determined.”15 Hence, Dewey argued for “political and legal machinery” that was “adequately flexible and responsive” to meet the ever evolving and changing needs of its publics.16 This idea is today a key theme of democratic experimentalists, who – referencing Dewey – similarly argue that the state should not enact fixed legal rules but rather govern by establishing provisional, revisable frameworks designed to induce bottom-up problem solving by confederations of local, national, and even transnational constituencies.17 But how exactly is this ideal of decentralized social coordination within and among publics – rather than the persistence of the status quo or the domination of elite interests – possible to achieve? Dewey was himself far from sanguine about the possibilities of coordinated public problem solving. To the contrary, he thought the public was in crisis because its members often failed to identify the common interests that bound them together and, as a result, failed to act on their collective concerns.18 Even specific associational groups mis-

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perceived their common aims. Labor, for example, Dewey complained, was “hampered by a fixed habit of thinking and acting in terms of immediate wages and hours of labor instead of in terms of control of economic conditions.”19 For Dewey, the pressing political problem was thus as follows: “By what means shall [the public’s] inchoate and amorphous estate be organized into effective political action relevant to present social needs and opportunities?”20 3. Dewey’s Turn to Communication Dewey’s answer to this question of coordinating political action is as definite as it is oblique: communication. Publics, he argued, “demand communication as a prerequisite.”21 Without communication, he argued, “the public will remain shadowy and formless,” indeed, it will continue to find itself “in eclipse.”22 As Robert Westbrook explains, Dewey argued that “the first task of democratic reformers was to discover ‘the means by which a scattered, mobile and manifold public may so recognize itself as to define and express its interests,’ and this was in the first instance a problem of inquiry and communication.”23 For Dewey, communication serves two critical functions. First, it is a social imperative. Dewey believed that through participating in acts of dialogic sociality actors become fully human. Or to express the claim in Dewey’s words: To learn to be human is to develop through the give-and-take of communication an effective sense of being an individually distinctive member of a community; one who understands and appreciates its beliefs, desires, and methods, and who contributes to a further conversion of organic powers into human resources and values.24 Second, communication underlies Dewey’s political vision of egalitarian, democratic governance. For him, communication not only makes people human through ongoing and reciprocal processes of self and social realization, it enables humans to create forms of social organization that are not grounded in individual market exchange. Dewey was extremely critical of theories that promoted the market economy as the optimal form of social order – that is, he was critical of theories that held “that commercial exchange would bring about such an interdependence that harmony would automatically result.”25 To the contrary, the “doctrine of the ‘natural’ economy,” he argued, “provides just the situation which makes it possible and worth while for the stronger and abler to exploit others for their own ends.”26 “The only possible solution” to the problem of market exploitation, Dewey insisted, is “the perfecting of the means and ways of communication of meanings so that genuinely shared interest in the consequences of interdependent activities may inform desire and effort and thereby direct action.”27 In other words, Dewey argued that through communication, actors can create common experiences of their interests and ends, inquire “into what altered

Producing Publics: Dewey, Democratic Experimentalism, Communication 147 distribution would yield more desirable consequences,” and produce more democratic and egalitarian associations.28 For Dewey, communication was thus simultaneously the means and the end of a normatively desirable individual and communal life. “Communication and its congenial objects,” he explained, are worthy as means, because they are the only means that make life rich and varied in meanings. They are worthy as ends, because in such ends man is lifted from his immediate isolation and shares in a communion of meanings.... When the instrumental and final functions of communication live together in experience, there exists ... a society worthy to command affection, admiration, and loyalty.29 Hence, Dewey famously concluded that “[c]ommunication can alone create a great community.”30 4. Producing Publics Heady stuff this Deweyan idea of communication. Rather than attempt to venture any conclusions about whether it can actually achieve the radical social forms Dewey envisions, I instead explore in more detail how Dewey inflected the term communication with public function and meaning. I do so in order to compare it in the following section to the theories and practices of communication that are being developed within democratic experimentalism. As we have seen, for Dewey, communication was synonymous with participation in public life and the collective determination of human and social realities. What this means is that speech was not something that merely bridged the gaps between and among individuals and communities; it was instead an activity that constituted those individuals and communities as such. Dewey thus understood speech (as well as meaning, culture, experience, even intelligence 31) as reflecting supra-individual rather than individualized mental events. In other words, for Dewey, the authorial intent of language comes not from any one speaker but rather from public discursive practices. Here is how communication theorist John Durham Peters puts this idea: “a symbol signifies not because of what an individual associates it with, but because of the way it testifies of a community’s experience or of moments in history.”32 As such, Peters explains, “[f]or Dewey communication was not the problem of putting private minds en rapport one with another” – that is, for him, the purpose of communication was not “the intimate communion” of individuals.33 The challenge of communication instead was to induce people to partake of what Peters describes as the “possibilities of reasoning and discourse available in a community,”34 and, in this way, make possible shared experiences and the collective regulation of joint activity. Peters therefore suggests that Dewey’s public “in a way is a language factory. Its task was to invent forms of discourse needed for the exigencies of

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social life.”35 For this reason, Dewey was insistent about the possibilities of discursive forms such as science and art to produce new signs and symbols “that would prove useful for altering the way things are and for expressing the deep meanings of everyday experiences.”36 Also for this reason, Dewey argued that the creation of what he called “the great community” required the regeneration of local community life. Local publics, he insisted, subsist not only through common interests but also through common attachments, that is, through “bonds which hold persons together in immediate community of experience.”37 Cultivating such attachments requires “face-to-face intercourse” in actual, limited geographic spaces.38 Attachments, he explained, “are bred in tranquil stability; they are nourished in constant relationships ... [W]ithout abiding attachments associations are too shifting and shaken to permit a public readily to locate and identify itself.”39 Thus, although Dewey called for revisable, experimental forms of inquiry that are nimble and adaptive to change, he also recognized that using such deliberative tools to produce shared human experiences requires stable, secure background conditions. Hence Peters concludes that Dewey’s idea of communication combined public “supra-individual cultural forms,” such as scientific inquiry and artistic production, with stable, solidaristic “‘local communal life’ ... in which these forms become the common property of all.”40 Dewey’s depiction of communication is therefore not the familiar liberal understanding of speech that envisions the communion of free-floating sovereign egos regardless of context.41 It is therefore also markedly distinct from more psychological and contractual models of communication that are commonplace in problem-solving discourses in law. Consider, for example, ADR. In predominant strands of ADR theory and practice, actors who opt to resolve legal conflict through negotiation rather than adjudication are often coached to express their interests, emotions, and reasons.42 That is, they are told to explain why they want a particular end. The aim of such interior expression is, first, to achieve mutual understanding between and among different actors and, second, if possible to achieve consensus. Conflict, in this view, often reflects semiotic, psychological, or emotional gaps in signification and meaning.43 And conflict resolution, in turn, is produced through the meeting and reconciliation of individual minds – the “sharing of private mental property,” through which the internal desires of one subject encounter, combine, trade, and compromise with those of another.44 In this model, communication functions first and foremost to produce agreement based on the external understandings of interior thoughts, rather than foundationally, as it does for Dewey, to produce new experiences of solidarity and community or to restructure the conditions for participation in collective life.45 Thus when participants in legal disputes and negotiations are taught to move from positions to interests so that they can achieve beneficial exchanges, they are not – at least not without more – necessarily invoking a Deweyan ideal of communication. To be sure, Dewey described forms and mechanisms of speech that are similar to those generally promoted in dispute resolution. For

Producing Publics: Dewey, Democratic Experimentalism, Communication 149 example, he called for “the improvement of the methods and conditions of debate, discussion and persuasion.”46 But the substance – that is, Dewey’s understanding of why communication is a democratic good and why democracy is “conjoint communicated experience” – is different.47 To draw on Simon’s description of Deweyan education, the difference is analogous to the distinction between a teacher who asks students to learn by responding to a question, and a teacher who asks students to learn by preparing a class meal.48 If ADR theorists emphasize the dialogue that takes place around a negotiating table – the place where individuals come to speak about a problem – for Dewey, communication requires cultivating practical ways to create shared social contexts that in turn can be measured by coordinated action. What is so radical – and, yes, so elusive – about Dewey’s political vision of communication is that for him misunderstanding “meant upset interaction, not minds failing to meld.”49 Thus, when Dewey described the deep democratic value of communication, he was not referring to the possibility of producing shared mental understandings and transparent agreements through the exchange of words. Rather, he meant to suggest the possibility of “participation in the creation of a collective world” through speech as an interactive, experiential, and communal practice.50 5. Communication and Democratic Experimentalism What then of democratic experimentalism? Like Dewey, democratic experimentalists turn to deliberation as the basis for a model of social organization that is not simply grounded in market exchange. Charles Sabel makes this point especially clear as he explains democratic experimentalists’ indebtedness to and simultaneous rejection of the ideas of neoliberal economic philosopher Frederich Hayek.51 On the one hand, democratic experimentalists embrace Hayek’s description of the limits of central planning and expert knowledge to engineer solutions to social problems from above, especially under conditions of uncertainty and complexity. On the other hand, they reject Hayek’s alternative idea of governance – namely, that by simply structuring informal social processes through background rules of property and contract, individuals will spontaneously and intuitively create things greater than anyone could deliberately design or consciously foresee. Instead, democratic experimentalists emphasize, like Dewey, the possibility of explicit citizen deliberation about social problems, rather than, like Hayek, tacit coordination through the price mechanism of the market.52 As such, they hold out the political possibility that through communication, publics can “collectively regulat[e] the aggregate consequences of individual interaction.”53 Communication thus is (or should be) for them, as it is for Dewey, a deeply normative, political, and public endeavor. The question that remains for this essay briefly to consider is how democratic experimentalists aim to cultivate practices of communication as not (or rather not only) a decision-making technique but also as means of producing publics as their own democratic good. Or to put the question a bit differently,

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how do they envision communication not as “the sharing of consciousness but rather the coordination of action oriented to deliberation about justice”?54 In his article in this volume, Simon describes innovations within democratic experimental institutions that clearly reflect a Deweyan ideal of communication. For example, he argues that within the democratic experimental vision, stakeholder deliberations take place within “institutions that pool the knowledge gained from these deliberations in ways that support and discipline them.”55 This suggests a concern with the political and material consequences of communication that makes it a unique approach to legal problem solving. Among scholars of ADR, for example, it is rare to find descriptions of communication as the systemic gathering, consolidating, and redistributing of discourse and information with the aim of making it an organizational resource available to all.56 But this is a central aspiration of democratic experimentalists. Within the problem-solving institutions they envision, individuals communicate with others affected by a shared problem, problem-solving organizations make the products of such communication – choices, criteria, standards – open to public view, and public officials pool, compare, and measure them across organizations – expanding through discursive networks the kinds of demands that members of the polity can make upon others and the kinds of overarching social and legal regulations they can impose on one another. 57 At the same time, however, democratic experimentalists tend not to describe (as either empirical fact or normative aspiration) the thick forms of self and social realization that Dewey argues should be produced through communication as a public-political ideal. Rather their examples of problemsolving publics tend to anticipate far looser associational ties and, in this sense, hold more in common with ADR. Consider, for example, what Simon calls “bracketed consensus,” and which he describes as a democratic experimental practice. Bracketed consensus is a model of consensus building that is increasingly used within business organizations, 58 and that has been designed and deployed by ADR theorists.59 It aims to consolidate the interests of a broad range of stakeholders who may have no abiding attachments (or, for that matter, desires to cultivate them). Through a process of structured dialogue, it invites these stakeholders to generate agreement around specific problems that ideally are more effective and informed because they emerge through processes that incorporate a broad range of views. The goal is agreement with broad – but not necessarily unanimous – support that is persuasive to those in the organization who retain formal decision-making authority.60 Thus, bracketed consensus does not require the creation of radically democratic contexts or the transformation of power structures to achieve its ends. To the contrary, it seeks as far as possible to eschew its own normativity – it is explicitly designed as a tool to help produce agreements through structured practices of dialogic exchange, whatever the normative ambitions of its users. The insight to take from Dewey is that different understandings of communication produce different understandings of publics and therefore of

Producing Publics: Dewey, Democratic Experimentalism, Communication 151 governance. For Dewey, communication was never simply a neutral technique used to bridge the mental properties of individuals, regardless of their aims. It was instead an “index of the good society” and thus a deeply normative praxis of politics and ethics.61 And there are actual examples of groups who understand and deploy communicative practices in such a fashion. For example, I have examined how contemporary social movements use consensus building to reach practical action-oriented decisions as well as to induce relational bonds, shared experience across difference, and radically egalitarian and consensual forms of self-governance.62 These publics, however, cultivate prior normative commitments to consensus building as an ethical choice and way of life, not simply as a tool of reaching agreement. Democratic experimentalism offers a different, less radical approach to communication and publics. It emphasizes, with ADR, Dewey’s attention to the ongoing process of discovering and negotiating interests rather than, as a primary matter, Dewey’s attention to producing solidaristic and egalitarian social ties. To be clear, democratic experimentalists hope that through the process of respectful negotiation and consensus seeking about interests, participants will adopt public-minded behaviors.63 But Dewey, it seems, wanted more. He emphasized at the outset what he saw as intrinsic links among communication, democracy, and the good community – placing his vision at odds with the more proceduralist style of decision making that underlies bracketed consensus. For precisely this reason, democratic experimentalism, like ADR, can offer a praxis of communication that is less normatively demanding, more flexible and scalable, and hence far less elusive to install into contemporary institutions than Dewey’s original vision. But it is also for this reason that while democratic experimentalists aim to produce negotiated agreements and creative responses to policy problems, they appear less intent on producing the supraindividual experience, or the social commitments, of becoming public – at least in the Deweyan sense of achieving particular transformations in self and social consciousness. To be sure, there are benefits in adopting an approach to public dialogue that does not require such thick preconditions and results. Not least of these are the ease of participation of a diverse range of users and the possibility of widescale implementation across a diverse range of contexts without first requiring significant structural change. Dewey himself was well aware of the practical limitations of his normative vision. Indeed, he wrote towards the end of The Public and its Problems: “perhaps to most, probably to many, the conclusions which have been stated as to the conditions upon which depends the emergence of the Public from its eclipse will seem close to denial of the possibility of realizing the idea of a democratic public.”64 But from a Deweyan perspective, there are also, of course, costs: with a more ADR-like model, deliberation can easily become an apolitical technique to negotiate policy decisions among individual actors rather than a collective practice that is constitutive and expressive of the democratic integrity of a community.

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Consider a brief example to explore this point. As a paradigmatic democratic experimental institution, Simon describes the Toyota Production System (TPS). As Simon explains, in the TPS, when design or production problems occur, workers are asked to deliberate about the underlying causes of the problem and to strive to reach consensus about how to resolve these problems going forward.65 For democratic experimentalists, the model of reason-giving and deliberation that TPS workers employ forms the basis of many of their ideas to transform public sector lawmaking. 66 We cannot assess from Simon’s description of TPS what is happening at the level of semiotic practice and lived experience. But from a Deweyan perspective we would want to understand the quality of social experiences that TPS produces in daily life. That is, we would want to understand if it is producing what Susan Silbey, Ruthanne Huising, and Salo Vinocur Coslovsky call “sociological citizens.”67 These are actors who “see their work and themselves as links in a complex web of interactions and processes,” who “experience the interconnected, nested relations that constitute [a] social problem,” and who therefore systematically take “account . . . of the larger connections and reverberations of their action.”68 Or conversely, is TPS producing what sociologist Richard Sennet, in his examination of the new decentralized flexible workplace, calls a “corrosion of character” – especially “those qualities of character which bind human beings to one another and furnishes each with a sense of sustainable self.”69 Why would it? Well, Sennet argues that the ideal of teamwork employed by many new flexible firms – and the dialogic collaboration it requires – is often superficial. Workers are trained in communicative ideals such as facilitation and good listening (“what I hear you saying...”).70 But these forms of communication remain “on the surface of experience” – words spoken across alienated individuals with the illusory promise of mutual understanding.71 For Sennet, this superficiality in part reflects the ways in which work teams deny hierarchies of power and privilege.72 And it in part reflects the ways teams are organized around immediate, shifting tasks and alliances instead of – and here he invokes a rather Deweyan image – the practice of “dwell[ing] together as in a village.”73 6. Conclusion In a volume dedicated to celebrating and interrogating the pragmatic – and especially Deweyan – roots of democratic experimentalism, this essay has sought to explore some of the more elusive aspects of Dewey’s ideas of communication and, in turn, to analyze some of what these ideas share in common with democratic experimentalism. Unlike more traditional forms of popular legal decision making and dispute resolution in law such as ADR, democratic experimentalists, following Dewey, have aspired from the outset not only to solve problems through stakeholder participation. More ambitiously, they have aimed – to quote Sabel and Simon who in turn quote Dewey – to

Producing Publics: Dewey, Democratic Experimentalism, Communication 153 produce a federation of “problem-solving ‘publics.’”74 This desire places squarely on the table for democratic experimentalists a question that is at the heart of Dewey’s political work. Namely, how to create a desirable theory and practice of communication that is designed primarily to answer not the challenge of individual speakers making their interior thoughts and desires transparent and understandable to others, but rather the challenge of producing shared social contexts and with them new experimental forms of democratic governance on a national (or even transnational) scale. This essay has suggested that democratic experimentalists offer a modified version of Deweyan deliberation – recommending, for example, tools such as bracketed consensus to facilitate stakeholder engagement with complex social problems but without necessarily requiring fealty to Dewey’s theories of social attachments or his normative commitments. At the same time, by exploring Dewey’s ideas of communication and contrasting them with more traditional ones, this essay has also tried to offer a lens to evaluate stakeholder deliberation from a Deweyan perspective. This is because, as Deweyan pragmatists know well, normative aspirations shape the means and ends of practical investigation. Today, democratic experimentalists propose to revive at least part of Dewey’s vision by examining institutional practices unfolding on the ground. It would thus seem that much productive – empirical and political – work could turn on concrete analyses of communicative practices that are Deweyan and those that are not.

NOTES 1. William H. Simon, “The Institutional Configuration of Deweyan Democracy,” in this volume, p. 6. 2. Ibid., p. 6. 3. John Dewey, Reconstruction in Philosophy (New York: Henry Holt, 1920), p. 205. John Dewey, The Public and its Problems (New York: Henry Holt, 1927), pp. 69– 70. See also Duncan Kennedy, “Three Globalizations of Law and Legal Thought: 1850– 2000,” in The New Law and Economic Development: A Critical Appraisal, ed. David Trubek and Alvaro Santos (Cambridge, UK: Cambridge University Press, 2006), p. 38. Kennedy notes the prevalence of the idea of “‘society’ conceived as an organism” during the first half of the twentieth century. 4. For example, Dewey explained that when “deep issues” or a “common dominator” cut across “shifting and unstable relationships,” and when people perceive these issues as the consequences of joint activity, then, as Dewey put it, “there exists something truly social and not merely associative.” The Public and its Problems, pp. 140, 188. 5. See, e.g., Simon, “The Institutional Configuration of Deweyan Democracy,” at p. 15. 6. Dewey, The Public and its Problems, pp. 27, 35. 7. A note on terminology: although Dewey often discussed the public in the singular form, this usage, as Robert Westbrook explains, “tended to obscure his

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contention that in any given society the Public was, at most, a collective noun designating plural publics that concerned themselves with the indirect consequences of particular forms of associated activity.” Westbrook, John Dewey and American Democracy (Ithaca, N.Y.: Cornell University Press, 1991), p. 305. 8. Dewey for example wrote, “Indirect, extensive, enduring and serious consequences of conjoint and interacting behavior call a public into existence having a common interest in controlling these consequences. But the machine age has so enormously expanded, multiplied, intensified and complicated the scope of the indirect consequences, has formed such immense and consolidated unions in action, on an impersonal rather than a community basis, that the resultant public cannot identify and distinguish itself. And this discovery is obviously an antecedent condition of any effective organization on its part.” The Public and its Problems, p. 126. See also Westbrook, John Dewey and American Democracy, pp. 307–308 (quoting Dewey: “many consequences are felt rather than perceived; they are suffered, but they cannot be said to be known, for they are not, by those who perceive them, referred to their origins”). 9. Dewey, The Public and its Problems, p. 113. 10. Charles Sabel and William Simon, “Epilogue: Accountability Without Sovereignty,” in Law and New Governance in the EU and the US, ed. Gráinne de Búrca and Joanne Scott (Oxford: Hart Publishing, 2006), pp. 402–403. 11. Dewey, for example, argued that “[i]t is impossible for high-brows to secure a monopoly of such knowledge as must be used for the regulation of common affairs. In the degree in which they become a specialized class, they are shut off from knowledge of the needs which they are supposed to serve.” The Public and its Problems, p. 206. 12. Dewey, Reconstruction in Philosophy, pp. 203–204. 13. See, e.g., Westbrook, John Dewey and American Democracy, pp. 303–304. 14. Dewey, The Public and its Problems, p. 72; Westbrook, John Dewey and American Democracy, p. 304. Dewey likewise explained that legal rules, although not properly understood or configured as commands, should set forth “the institution of conditions under which persons make their arrangements with one another. They are structures which canalize action.” The Public and its Problems, pp. 53–54. 15. Ibid., p. 74. He elaborated further that “the question of what transactions should be left as far as possible to voluntary initiative and agreement and what should come under the regulation of the public is a question of time, place and concrete conditions that can be known only by careful observation and reflective investigation.” Ibid., p. 193. 16. Ibid., p. 31. 17. See, e.g., Michael Dorf and Charles Sabel, “A Constitution of Democratic Experimentalism,” Columbia Law Review 98 (1998), pp. 267–473; Joshua Cohen and Charles Sabel, “Directly-Deliberative Polyarchy,” European Law Journal 3 (1997), pp. 313–342; William H. Simon, “Solving Problems vs. Claiming Rights: The Pragmatist Challenge to Legal Liberalism,” William and Mary Law Review 47 (2004), pp. 127–212. 18. Dewey thus wrote that the public’s “most urgent problem” is “to find and identify itself.” The Public and its Problems, p. 216. 19. Westbrook, John Dewey and American Democracy, p. 276, quoting Dewey, “A New Social Science” in Middle Works, v. 11, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1982), p. 88. 20. Dewey, The Public and its Problems, p. 125. 21. Ibid., p. 152 (emphasis in original). 22. Ibid., p. 142.

Producing Publics: Dewey, Democratic Experimentalism, Communication 155 23. Westbrook, John Dewey and American Democracy, p. 309. 24. Dewey, The Public and its Problems, p. 154. 25. Ibid., p. 155. On Dewey’s own particular embrace of democratic socialism, see Westbrook, John Dewey and American Democracy, pp. 225–226, 429–430, 441. 26. Dewey, The Public and its Problems, p. 155. 27. Ibid. 28. Ibid., p. 193. Dewey argued further: “the situation in which a good is consciously realized is not one of transient sensations or private appetites but one of sharing and communication – public, social.... The increasing acknowledgement that goods exist and endure only through being communicated and that association is the means of conjoint sharing lies back of the modern sense of humanity and democracy.” Reconstruction in Philosophy, p. 206. 29. Dewey, Experience and Nature (Chicago: Open Court, 1926), p. 205. 30. Dewey, The Public and its Problems, p. 142. 31. For example, Dewey wrote, “The notion that intelligence is a personal endowment or personal attainment is the great conceit of the intellectual class, as that of the commercial class is that wealth is something which they personally have wrought and possess.” The Public and its Problems, p. 211. 32. John Durham Peters, “Democracy and American Mass Communication Theory: Dewey, Lippmann, Lazarsfeld,” Communication 11.3 (1989), pp. 199–220, p. 211. 33. Ibid., p. 205. 34. Ibid., p. 206. 35. Ibid. 36. Ibid. 37. Dewey, The Public and its Problems, p. 214. On the role of stable local communities and deep relationships in producing a democratic public, see generally, ibid., pp. 211–219. 38. Ibid., pp. 211–12. 39. Ibid., p. 141. 40. Peters, “Democracy and American Mass Communication Theory,” p. 207. 41. Peters traces this more common understanding of communication as “mental sharing” most decisively to the work of John Locke. Here is how he explains it: “Locke treats the meanings of words as a sort of private property in the individual’s interior.... The individual (and not society, language, or tradition) is the master of meaning, which makes common understanding between individuals both desperately urgent and highly problematic.” Thus for Locke, “‘communication’ showed one way that individuals could coexist without compromising their sovereignty ... they would share thoughts.” John Durham Peters, Speaking into the Air: A History of the Idea of Communication (Chicago: University of Chicago Press, 1999), pp. 81, 87. 42. For seminal works in this tradition, see Roger Fisher and William Ury, Getting to Yes: Negotiating Agreement Without Giving In, ed. Bruce Patton (Boston: Houghton-Mifflin, 1981); Robert H. Mnookin, Scott R. Peppet, and Andrew S. Tulumello, Beyond Winning: Negotiating To Create Value in Deals and Disputes (Cambridge, Mass.: Harvard University Press, 2000); Douglas Stone, Bruce Patton, and Sheila Heen, Difficult Conversations: How to Discuss What Matters Most (New York: Viking Penguin, 1999). I should add that within US ADR there is a smattering of efforts to link dispute resolution to community self-governance that never captured the core of the institutionalized movement. For an overview, see Amy J. Cohen and Michal

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Alberstein, “Progressive Constitutionalism and Alternative Movements in Law,” Ohio State Law Journal 72 (2011), pp. 1083–1113, at pp. 1089–1096. 43. For critiques of this view of conflict, see, e.g., Laura Nader, “From Legal Process to Mind Processing,” Family and Conciliation Courts Review 30.4 (1992), pp. 468–473; Judy H. Rothschild, “Dispute Transformation, the Influence of a Communication Paradigm of Disputing, and the San Francisco Community Boards Program,” in The Possibility of Popular Justice: A Case Study of Community Mediation in the United States, ed. Sally Engle Merry and Neal Milner (Ann Arbor: University of Michigan Press, 1995), pp. 265–328. 44. Peters, Speaking into the Air, p. 17. 45. But see Sara Cobb, “Narrative ‘Braiding’: Negotiating Identity and Transforming Conflicts,” unpublished manuscript. Cobb offers an alternative perspective on negotiation and dispute resolution that explicitly draws on John Dewey. 46. Dewey, The Public and its Problems, p. 208. 47. John Dewey, Democracy and Education: An Introduction to the Philosophy of Education (New York: Macmillan, 1916), p. 101. 48. Simon, “The Institutional Configuration of Deweyan Democracy,” p. 9. 49. Peters, Speaking into the Air, p. 19. 50. Ibid. 51. For this argument, see Charles F. Sabel, “Design, Deliberation, and Democracy: On the New Pragmatism of Firms and Public Institutions,” in Liberal Institutions, Economic Constitutional Rights, and the Role of Organizations ed. K.-H. Ladeur (Baden-Baden, Germany: Nomos Verlagsgesellschaft, 1997), pp. 101–149. 52. For further elaboration of this argument, see Amy J. Cohen, “Governance Legalism: Hayek and Sabel on Reason and Rules, Organization and Law,” Wisconsin Law Review (2010), pp. 357–387. 53. Simon, “The Institutional Configuration of Deweyan Democracy,” p. 14. 54. Peters, Speaking into the Air, p. 20 (describing Habermas’s view of communication whose lineage, Peters argues, is Deweyan). 55. Simon, “The Institutional Configuration of Deweyan Democracy,” p. 15. 56. For an important exception, see Susan Sturm and Howard Gadlin, “Conflict Resolution and Systemic Change,” Journal on Dispute Resolution 1 (2007), pp. 1–63. 57. See, e.g., Kathleen G. Noonan, Charles F. Sabel, and William H. Simon, “Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform,” Law and Social Inquiry 34 (2009), pp. 523–568. 58. For example, the former CEO of Mitsubishi Motors recently argued that “[t]he command and control model of management is now obsolete... [C]onsensus decision making yields higher-quality and higher-commitment decisions.” Larry Dressler, Consensus Through Conversation: How to Achieve High-Commitment Decisions (San Francisco, Cal.: Berrett-Koehler, 2006), p. xi. 59. For paradigmatic and pathbreaking examples, see Lawrence E. Susskind and Jeffrey L. Cruikshank, Breaking Robert’s Rules: The New Way to Run Your Meeting, Build Consensus, and Get Results (Oxford: Oxford University Press, 2006), and The Consensus Building Handbook, eds. Lawrence Susskind, Sarah McKearnan, and Jennifer Thompson-Larmer (Thousand Oaks, Cal.: Sage, 1999). 60. See generally, Susskind and Cruikshank, Breaking Robert’s Rules. 61. Peters, Speaking into the Air, p. 269.

Producing Publics: Dewey, Democratic Experimentalism, Communication 157 62. For a detailed discussion, see Amy J. Cohen, “On Being Anti-Imperial: Consensus-Building, Anarchism, and ADR,” Law, Culture, and the Humanities, prepublished (12 September 2011), doi:10.1177/1743872111417965. 63. See, e.g., Simon, “The Institutional Configuration of Deweyan Democracy,” p. 27. 64. Dewey, The Public and its Problems, p. 185. 65. Simon, “The Institutional Configuration of Deweyan Democracy,” p. 28. 66. Ibid., pp. 16–20. See also William H. Simon, “Toyota Jurisprudence: Legal Theory and Rolling Rule Regimes,” in Law and New Governance in the EU and the US, ed. Gráinne de Búrca and Joanne Scott (Oxford: Hart Publishing, 2006), pp. 37–64. 67. Susan Silbey, Ruthanne Huising, and Salo Vinocur Coslovsky, “The ‘Sociological Citizen’: Relational Interdependence in Law and Organizations,” L’Annee Sociologique 59.1 (2009): 201–229. 68. Ibid., pp. 203, 222. 69. Richard Sennett, The Corrosion of Character: The Personal Consequences of Work in the New Capitalism (New York: W.W. Norton, 1998), p. 27. 70. Ibid., p. 110. 71. Ibid., p. 99. 72. Ibid., p. 111–116. 73. Ibid., p. 110. 74. Sabel and Simon, “Epilogue: Accountability Without Sovereignty,” p. 402 (emphasis added).

Amy J. Cohen Moritz College of Law Ohio State University 55 West 12th Ave Columbus, Ohio 43210-1391 United States

Contemporary Pragmatism Vol. 9, No. 2 (December 2012), 159–180

Editions Rodopi ©2012

What is a “Democratic Experiment”? Chris Ansell

This paper examines a key concept of democratic experimentalism, asking what is a “democratic experiment”? Starting with Donald Campbell’s argument in favor of an experimenting society, I critically examine whether randomized controlled experiments should be the gold standard for democratic experimentalism. I next suggest that a more compatible conception of experimentalism might be found in recent work on design experiments that iteratively improve design through real world application. Avoiding verificationism, Dewey’s treatment of experimentalism as a basis for modern democratic authority adopts a more general interpretation of experimentation as a form of cooperative inquiry. Finally, I examine the meaning and application of experimentalism in the area of adaptive management, an approach to natural resource management. This analysis finds many of the same tensions in practice as they are described in theory, particularly between “experimental” and “collaborative” forms of adaptive management, pointing to the challenges of making experiments democratic.

1. Introduction Pragmatist philosophy holds experimentation in high esteem. Experimentation is a leitmotif that captures, in a single stroke, the Pragmatist commitment to fallibilism, to active learning through discovery and experience, and to the iterative growth of knowledge. It is not surprising then that recent work in the Pragmatist-inspired social sciences places this leitmotif at the center of their analysis. Under the banner of “democratic experimentalism,” social scientists have identified and explored the possibilities of new forms of political practice. But as a richly evocative concept, “democratic experimentalism” also carries with it the intellectual baggage associated with the concept “experiment.” In this paper, I will examine this intellectual baggage, taking the idea of “experiment” and “experimentalism” seriously. To do this requires that we examine a number of issues. First, in what sense is the language of experiment and experimentation, derived from the laboratory, useful and appropriate when applied to the social world? Second, what is the meaning of “experiment” when we apply the adjective “democratic” to it? How can a technique designed to isolate the effect

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of an independent variable on a dependent variable be said to be “democratic”? If we are to take the concept of democratic experimentalism seriously, I will argue, we must directly confront these issues. I think it is fair to say that the literature on democratic experimentalism has taken the idea of experimentalism more in its connotative than in its denotative sense. In the classic article on democratic experimentalism by Dorf and Sabel (1998), experimentalism has a general connotation implied by the key governance processes outlined in their paper – benchmarking, simultaneous engineering, and learning by monitoring. Although never explicitly defined, we can infer from these processes that experimentalism refers broadly to a process of learning from the experience of others. Similarly, in a more recent article applying the concept of democratic experimentalism to EU governance, Sabel and Zeitlin (2008) identify four key features of experimentalist governance: (1) framework goals and measures established through joint deliberation between member states and the EU; (2) lower-level units with the autonomy to address these framework goals and measures as they see fit; (3) regular reporting by lower-level units on their progress in meeting framework goals and measures; and (4) periodic revision of framework goals and measures. Again, the authors do not focus in a literal way on the meaning of experimentalism, but we can infer from their description that experimentation refers to the iterative efforts of lower-level units to devise strategies for meeting framework goals, followed by information pooling about the results of those efforts. It may be something akin to a category error to literally scrutinize a concept like “experimentation” if it is only being used in a connotative way. But treating the concepts of experiment and experimentalism somewhat literally raises a number of important issues for Pragmatism in general and for democratic experimentalism in particular. When applied to society and to politics, experimentalism resurrects long-standing issues about rationality and the relationship between science and politics. Does democratic experimentalism assume a kind of scientific rationality to the democratic process, a rationality often viewed cynically by the social sciences? Does experimentalism actually contribute to a logic of technocratic governance that strengthens the role of experts rather than the democratic process? What problems do social experiments face in actual practice? Clearly, the democratic process throws up many challenges to the idea of a randomized controlled experiment. But perhaps our Pragmatist concept of experimentalism cannot and should not mimic the standard of the laboratory. We can begin to explore these issues by first returning to an older debate about the “experimenting society.” 2. The Experimenting Society At the end of the 1960s, eminent psychologist Donald Campbell wrote a now classic article, “Reforms as Experiments,” that argued that social reforms ought to be treated as experiments (Campbell 1969). Campbell argued that most social

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policies were introduced by “advocates as though they were certain to be successful” (1969, 2). As a result, society was unable to actually learn from social reforms and hence was unable, over the longer term, to design more effective policy interventions. Campbell was explicit that the gold standard of experimentation was the randomized controlled experiment, but he also clearly recognized that social reforms rarely afforded the opportunity for such designs. However, he felt that we might still achieve “quasi-experimental designs,” arguing that “We must do the best we can with what is available to us” (1969, 4). His work coincided with what Oakley has called the “Golden Age of Experimentation” in U.S. social policy (Oakley 1999). She argues that between the 1960s and the 1980s, U.S. social policy successfully used randomized controlled experiments to test a variety of social programs. Campbell was hard-headed in his assessment of the conditions that allowed for even quasi-experimental designs, identifying an “inventory of threats” to experimental validity (1969, 3). 1 He identified nine threats: 1. History: confounding events that occur between pretest and posttest 2. Maturation: changes in the unit of analysis due to passage of time 3. Instability: primarily, instability of measures 4. Testing: whether the pretest itself affects the posttest 5. Instrumentation: changes in calibration of the measuring instrument 6. Regression artifacts: artifacts from sampling treatment units on the basis of extreme scores 7. Selection: selection bias resulting from who is recruited into the study 8. Experimental mortality: loss of subjects from comparison groups 9. Selection-maturation interaction: selection bias resulting from different rates of maturation or change While hard-headed about the possible threats to experimental validity, he remained optimistic (or perhaps stoic) about the potential for experimental policymaking. Campbell acknowledged the vulnerability of experimentation to a politics of denial, noting that: “In the present political climate, reformers and administrators achieve their precarious permission to innovate by overpromising the certain efficacy of their new programs. This traps them so that they cannot afford to risk learning that the programs were not effective” (1970, 111). His concerns were perhaps well-founded, because despite the experimental successes identified by Oakley, the larger movement toward social experimentation often proved disappointing (Berk et al. 1985). Campbell’s provocative argument for an “experimenting society” prompted a number of responses, both positive and negative, and led other scholars to examine the possibilities and limits of his argument.2 Weiss and Rein, for example, argued that “broad-aim” programs – programs “which hope to achieve non-specific forms of change-for-the-better, and which also, because of their ambition and magnitude, involve unstandardized, large-scale intervene-

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tions” – are extremely difficult to evaluate experimentally (1970, 97). They argued that it is difficult to identify satisfactory evaluation criteria for broad-aim programs and the information that an experimental design produces is limited (negative or positive results on limited criteria). To these critiques, Campbell (1970) responded that experimental designs should be based on multiple measures and multiple modes of measurement. He also argued that the problem of less-than-perfect control groups could be addressed by using a “rival hypotheses” approach, pointing out that even an imperfect control group may help to adjudicate between alternative hypotheses. Later, a model of “realist evaluation” was developed that follows in the Campbell tradition, but is explicitly designed for the evaluation of complex interventions (Pawson et al. 2005).3 In a sympathetic critique, Dunn embraced experimentalism but sought to separate it from what he regarded as its unfortunate association with positivism. He argued that social reformers, of various stripes, do not share standards of appraisal or the incentive structure to suspend judgment that are characteristic of a community of experimenters (1982, 299). Consequently, differences in underlying standards of appraisal are usually the “most decisive” issue in contested knowledge claims, rather than evidence or data (1982, 314). While acknowledging that Campbell had a “realist” rather than a “positivist” epistemology, Dunn (1982) argued that the idea of social experimentation was burdened by its association with positivist science (1982, 295).4 Thus, he argued that the most important threats to the validity of social experiments were not the “first-order” threats identified by Campbell, but rather “second-order” threats related to the “appropriateness of problem definitions” (1982, 300). Based on this understanding, he proposed to place the justification for social experiments in a framework that acknowledged that social experiments were “symbolically-mediated.” He suggested the philosopher Stephen Toulmin’s model of argumentation as a framework for debating social reforms and proposed the metaphor of jurisprudence, in particular, as the way in which knowledge claims could be adjudicated in a symbolically-mediated setting. The value of this approach, Dunn claimed, was that it surfaced the assumptions driving competing know-ledge claims. In a response to Dunn, Campbell accepted that “experiments are arguments” but also emphasized that experimentation was “a continuing iterative process, a selfconscious tentativeness precluding pretenses to having achieved finalization” (1982, 332). As suggested by Dunn’s argumentation framework, one alternative is to move away from a laboratory or even a quasi-experimental conception of experimentation. For example, Gross contrasts the Pragmatist social reformer Jane Addams’s view of experimentation with Campbell’s: In other words, implicitly the quasi experiment in the Campbellian tradition was always treated as a deficit model of the real thing [e.g., a randomized, control experiment in a laboratory]. This view differs fundamentally from the usage of Addams. In Addams’s notion, social

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processes are increasingly understood as experiments in coping with the structural complexity and the unpredictable dynamics of modern social city life conducted by society on itself. Thus experiments in the real world are, in a sense, the real and true experiments and the laboratory idea is a special variation of it. (Gross 2009, 90) But not all Pragmatists would agree that the standards of scientific experimentalism should be so relaxed. In a discussion of Pragmatist experimentation in ethics, Weber argues that it is “important to distinguish true experimentalism from the simple idea that we often try things in ethics and public policy” (Weber 2011, 100). A true experiment, he argues, requires a test of a hypothesis and an adjustment based on what is learned from that test. In these discussions, we begin to see that people erect different standards for experimentalism. Campbell’s tradition, I suggest, stresses the centrality of verification. His emphasis is therefore on the threats to the validity of experiments. On the other hand, democratic experimentalism, it must be said, pays little heed to verification. Instead, it emphasizes the generation of “variation” by giving local units the power to experiment (local experimentalism). Variation produces “difference.” Then, through comparison of “best practices,” different units can adopt the best practices of other units. One way to interpret democratic experimentalism is in Darwinian terms. It proposes a natural selection model that promotes positive evolution by increasing the “variation” in the policy gene pool.5 Local experiments are like “birth and death” processes and the “survival” of certain traits (and the disappearance of others) can increase the overall health of the population. Thus, a social laboratory is not necessarily a place where randomized, controlled experiments are run, but rather a place where many ideas are tried out. The lack of interest in experimental verification suggests that democratic experimentalism may regard the success or failure of experiments as relatively self-evident. In a Pragmatist-inspired study of experimentalism in environmental policy, Overdevest, Bleicher, and Gross make just such a claim: “[The experimentalist] argument is not the naïve one that one truth will be found via such experiments, rather that the process should generate conditions for greater learning through surprise” (2010, 284). Yet I think we can accept here that we still lack a positive conception of “experiment.” “Design experimentation” – an approach developed for the conduct of educational experiments – might possibly serve this role. Recently, Gerry Stoker and Peter John have advocated “design experimentation” as an approach to policy experiments (Stoker and John 2009). 6 Design experiments, they argue, differ significantly from randomized controlled experiments. Design experimentation starts with the presumption that the world is a messy place and that experiments will not be able to isolate the effect of single variables. In a design experiment, the experimenter presumes that the experiment will interact with the totality of the setting in which the experiment is conducted. The focus of a design experiment is not to definitively accept or reject a hypothesis, but

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rather to iteratively refine the intervention (design-redesign cycles). Research questions are updated as the intervention unfolds (as opposed to each intervention being a single test). The ultimate purpose is not to test general theory, but to probe the possibilities and limits of the intervention. Design experiments do not create a sharp distinction between researchers and subjects; instead, the practitioners often become experimenters. 7 While the design experiment differs from a randomized controlled experiment, it does share with this research tradition the need to explicitly pose and evaluate research questions guided by both theoretical and practical concerns.8 Design experimentation builds on Herbert Simon’s distinction between the analytic and the design sciences. A design science is concerned with how human artifacts work in practice. In their review of design science, Collins, Joseph, and Bielaczyc (2004) argue that design experiments test the efficacy of a design in a particular real-world context. It is expected that the design unfolds in interaction with this context and that these interactions cannot be fully anticipated. In other words, design experiments do not fully control the conditions in which the experiment occurs, as laboratory experiments attempt to do. Design experiments adopt a strategy of “progressive refinement,” where a beta version of the experiment is first introduced, and then is progressively improved. By contrast with laboratory experiments, design experiments do not really try to fully control or limit variables. Instead, the goal of experimentation is to identify the range of variables affecting outcomes of interest. Nor do design experiments seek to test a single well-defined hypothesis; instead, the goal is to develop a wider “profile” of the effects of the overall design. Due to this wide scope of interest, design experiments typically require a multi-method approach, collecting qualitative and quantitative data and observations on a wide range of behaviors and indicators. Finally, in contrast with laboratory studies, the study participants are involved in design. Since the democratic experimentalism literature has not been very explicit about the meaning it attributes to the concept of “experiment,” I suggest that it is more compatible with design experiments than with randomized controlled experiments or even quasi-experiments. Clearly, democratic experimentalism envisions experiments as being conducted in the messy real world. They talk little of controlling experimental conditions and express little concern about verification. The interventions they are concerned about are typically institutional and they are very interested in the iterative refinement of designs. This design experiment perspective is also compatible with the Darwinian view of increasing variation – a point that can be interpreted as increasing the number of design options available. However, this design experiment perspective may be in some tension with democratic experimentalism’s benchmarking strategy. From a design experiment perspective, designs are introduced into a concrete social context and then co-evolve with that context. This does not mean that nothing can be learned by comparing across contexts, but it does mean that that we must be cautious about transferring experimental results from one context to

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another. It also means that we should be cautious about any tendency to identify a “best design.” Designs are contingent upon context. The design science approach to experimentalism, of course, has its own limitations. But it comes closest to what I argued, in my previous work, characterized a Pragmatist approach to experimentation. There, I suggested that Pragmatism departs from a positivist view of experimentation by emphasizing the “provisional, probative, creative, and jointly constructed character of social experimentation” (Ansell 2011, 12). Design approaches are interested in causality, but conclusions are likely to be more provisional than are the conclusions of laboratory experiments. By exploring the impact of a design in a real, messy context, design approaches will investigate the multiple pathways of causation and will attempt to relate causation to a wider set of interrelated factors than will a laboratory experiment. Thus, a design approach will investigate these causal pathways in a more probative fashion than laboratory experiments. The iterative redesign of design experiments makes the experimental process more creative than a single shot laboratory test. Finally, by breaking down the boundaries between researchers, practitioners, and subjects, the design approach embraces the jointly constructed character of experimentation. To defend, refine, and elaborate this position, I will examine more closely the legacy of Pragmatist thinking about experimentation. It is a more complex and ambiguous narrative than I had earlier recognized 3. Pragmatist Philosophy, Experimentalism, and Democracy Few would dispute the claim that experimentalism is an important Pragmatist theme. Yet the precise position of Pragmatism and Pragmatists on experimentalism is surprisingly difficult to clarify and has been the subject of many disputes. Peirce’s views on experimentation are sometimes interpreted as coming close to a verificationist perspective: “removing of doubt” is central to his concept of experimentalism (Wiener 1956). Among the founding Pragmatists, Peirce was the closest to the natural sciences, but questions still arise as to whether he had one view of inquiry for the natural sciences and a different one for ethics (Weiner 1956; Murphree 1963) and the precise relationship of his thought to the positivist doctrine of verification is unsettled (Almeder 1979). Questions have also been raised about William James’s stance towards experimentation. He is charged, for example, with being an indifferent experimentalist (Evans 1990; Taylor 2006). Dewey’s work paints the broadest canvas for the idea of experimentalism, because he sought to extend experimentalism beyond the scientific community to society. Notably, Dewey made the bold move of explicitly extending the idea of experimentalism from science proper to the field of ethics. His goal in doing this was to overcome the fact-value dichotomy by making ethical values, as a well as empirical facts, the subject of on-going inquiry (Norton 1999).9 Weber identifies seven key tenets of Deweyan experimentalism as applied to ethics.

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CHRIS ANSELL 1. an attitude of openness to learning through trial and error. 2. acceptance that persons of all backgrounds could be sources of insight about ethics. 3. agreement that inquiry through good scientific methods will be taken seriously in judging the outcomes of experiments. 4. recognition that there is a creative element in hypothesis formation or the framing of problems to be examined and tested, which will always include implications and potential for unwanted bias. 5. realization of the limits of human knowledge, both in terms of empirical fact and in terms of moral experimental design. 6. preparedness to draw on the valuable tools of various moral theories without seeing any singular theory as required for all to accept exclusively. 7. acknowledgement of the expansive progression for moral considerations beyond the limits of what previous generations respected morally. (Weber 2011, 104)

We can see some affinity here with the features of Pragmatist experimentation I identified in my earlier work: experimentation is provisional (openness to learning; realization of limits of human knowledge; expansive progression beyond the expectations of previous generations), probative (preparedness to use various moral consideration without seeing a singular theory), creative (creative element in hypothesis formation), and jointly defined (acceptance that all persons are sources of insight). This perspective points to the way that experimentalism is embedded in a wider notion of inquiry. David Hildebrand argues that four aspects of Pragmatist inquiry are critical: First, inquiry is dynamic. It is a process of problem solving that involves feeling, observation, analysis, hypothesis, and experimental action. Second, inquiry’s results are fundamentally provisional: any results achieved by inquiry (which may be codified as ‘laws,’ ‘principles,’ and so forth) should be understood to be ‘reliable’ or ‘warranted’ but never absolutely ‘true.’ Third, to be an effective method, inquiry must be selfcorrecting. Since its purpose is to serve evolving creatures in a changing environment, specific techniques and assumptions of any inquiry must remain open to correction, modification, or deletion. Finally inquiry is social: it involves collaboration and communication among people navigating a problematic situation together. People banded together in such an enterprise constitute a ‘public.’ (2011, 592–593) Waks (1998) points out that Dewey’s experimentalism answered a search to find a basis of modern authority (after religion had lost this role). For Dewey, science created an inquiring attitude that he believed could provide the basis for a

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reconciliation of freedom and authority (Haworth 1960). Like the idea of experimentation embraced by Jane Addams (Dewey’s close collaborator), he understood this authority as arising from the experience of people.10 It is not so much science per se that provides this authority (e.g., via the verified truth provided by experiment), but rather the action of inquiry itself. Following Hildebrand, we might say that authority is created when the process of inquiry has become dynamic, provisional, self-correcting, and social. The relationship between experimentalism and democracy is central to Dewey’s work, but it is a complex and often subtle relationship. Bohman (1999) argues that Pragmatism pushes in two directions: toward making democracy more like science (more like a form of cooperative inquiry); but also toward democratizing science (making the basic techniques of science accessible to all citizens).11 Waks writes that for Dewey, “Experimentalism was a framework for a unified cultural and educational project. The goal was to place in the hands of ordinary people the tools to undermine socially problematic forms of science and technology” (1997, 18). In doing this, Dewey raised some profound questions about the role of science, and its implications for political and social practice. Waks (1998) observes that by extending the role of science to ethics, and indeed, to the whole field of democratic practice, Dewey tends to prompt two types of reactions. One reaction is to simply reject his view of the importance of science as misguided. The other is to try to soften Dewey’s claim for science, by interpreting science in a very broad and more metaphorical way.12 While we can certainly apply the metaphor of science to democratic practice, science and democracy have come from different domains of practice. Science is traditionally the domain of specially trained experts using specialized techniques to strategically manipulate experimental conditions. Democracy is traditionally the domain of citizens, whose knowledge is variable and limited, and who operate in a context of competing values and goals. In what sense can an experiment be democratic or democratizing? Gross describes Jane Addams understanding of experiment as democratizing. Her view of experiment was the idea of making knowledge useful for everyday life, and in particular, a life of self-government. From her perspective, an experiment “has to be initiated by the people themselves” (Gross 2009, 87). Gross summarizes the democratic connotation that Addams gave to experimentation: In such an experiment, the participating actors, including the social workers and social scientist, are thus empowered to ‘experimentally’ learn from society within society. Furthermore, the negotiation of what can be called experimental design needs to be accomplished by turning concerned people at Hull House into participating actors, that is, hands-on practicing actors to handle surprises and to successfully re-negotiate the design. Experiments thus understood can generate learning and in so

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In a democracy, however, people have the right to ignore evidence (Sanderson 2009). Hildebrand argues that the Achilles heel of the experimentalist view is that it excludes those who do not share, in the first place, the experimentalist view (e.g., those who do not believe that norms are subject to inquiry...). Moreover, the idea of extending experimentalism to democracy assumes that citizens do not have to be trained scientists to successfully conduct experiments. Dewey, in particular, stresses not only that the mind, in its attempt to solve problems, is by nature experimental, but also that citizens are capable of learning to be citizen-scientists.13 It should be remembered that Dewey’s idea of experimentalism arose, in part, out of his work in education. His emphasis on democratic experimentalism was really about extending the culture of experimentation to everyday practice (Hlebowitsh 2006). Bringing together the debate about Campbell’s “experimenting society” with this discussion of Dewey’s attempt to democratize experimentation, we see a number of differences in emphasis. First, Campbell’s notion of experimentation is dedicated to improving public policy by subjecting public policy experiments to greater evaluation. In seeking to use experimentation to verify the efficacy of social reforms, he runs in to the significant social and political challenges of constructing even “quasi-experimental” tests of efficacy. Dewey extends his notion of experimentation to democratic society, which is dedicated to cultivating a new basis for democratic authority. For Dewey, applying the idea of experimentation to democratic society is about deepening the ability of citizens to engage in open inquiry, both individually and collectively. As applied to democratic society, his model places greater emphasis on educating citizens to engage in open inquiry than it does on the specific features of verification. I would suggest that this does not preclude a concern about verification, but the emphasis is placed on promoting inquiry. The contemporary literature on democratic experimentalism stands somewhere between these two contrasting descriptions. As described earlier, the democratic experimentalist ideas of benchmarking and information pooling sounds more like Campbell than Dewey. However, like Dewey, democratic experimentalism stresses more of an open model of inquiry than it does a specifically verificationist notion of experiment. The “democratic” adjective in democratic experimentalism seems to arise from the freedom of many different lower level units to experiment with different policies. In the next section, I examine some of the issues raised in the last two sections as they apply to a concrete form of experimentalism – adaptive resource management. A significant body of work has developed around adaptive management, allowing us to deepen our interrogation of the meaning of experimentation and its practical implementation.

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4. An Experiment in Experimentation: Adaptive Management Adaptive management is envisioned as a form of experimentalism designed to test and improve natural resource management regimes (Walters and Hollings 1990; Karkkainen 2003). It is a notable version of a wider movement in policy studies to regard policy implementation as an iterative, experimental process (Eppel, Turner, and Wolf 2011). Norton describes the relationship between adaptive management and experimentalism: Adaptive managers believe that a path to sustainability cannot be charted by choosing a fixed goal or set rules at the start. We must start where we are; but we do have the ability to engage in experiments to reduce the uncertainty and to refine goals through iterative discussions among stakeholders. Environmental management must be a process in which managers choose actions that serve as experiments with the capacity to reduce uncertainty and to refine goals through iterative discussions among stakeholders. (1999, 459)14 Lee (1993) and Karkkainen (2003) argue that adaptive management is consistent with Dewey’s experimentalism.15 One well known example of adaptive management is the Glen Canyon Dam Adaptive Management Program on the Colorado River. This program is a collaborative program managed by a working group composed of 25 members. Over the last several decades, this program has conducted several high profile “flow experiments” that have enabled the program to learn how water releases from the dam affect sediment deposition downstream. These experiments have yielded knowledge about the relationship between flow and sedimentation that has important ecological consequences (Hamill and Melis 2012). Several “nonflow” experiments have also been conducted to try to improve conditions for an endangered native fish, the humpback chub. The management regime put in place as the result of these experiments was able to increase humpback chub populations by 50% since 2001. Despite these real successes in creating knowledge and improving chub populations, the program has been criticized for not making long-term modifications to the flow regime as indicated by the flow experiments (Susskind, Camacho, and Schenk 2012). Adaptive management is very attractive to resource managers and its popularity continues to grow. While there have been a number of adaptive management successes (Lee 1999), the overall results have been somewhat disappointing (Allen and Gunderson 2011; Walters 2007). In the cases of largescale ecosystem management that she studied, Layzer found a number of factors have discouraged learning from adaptive management, including the: “inability to agree on a baseline level of environmental protection; reluctance to allot money for monitoring, unwillingness to create institutions that can coordinate collection and analysis of data across jurisdictions and agencies, and political

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constraints on adjusting policies and practices” (2008, 280).16 Farrelly and Brown (2011) find that local water managers in Australia were enthusiastic about experimenting with different forms of water management, but that these experiments were often constrained by the larger water regimes in which they are embedded. In the Everglades, experimentation was prevented by interest groups who would have been affected by the experiments (Gunderson and Light 2006). Legal frameworks and the courts also come into conflict with adaptive management strategies (Ruhl and Fishman 2010; Thrower 2006). Walters (2007) argues that the most important factor in the failure of adaptive management programs in fisheries has been the lack of leadership to carry adaptive programs through a complex administrative process. One of the signs of the maturing of the adaptive management field is the attempt to specify the conditions under which adaptive management is more or less likely to work. Gregory, Ohlson, and Arvai (2006) offer four criteria for deciding whether adaptive management is a feasible strategy. They suggest that resource managers need to first think about the geographic and temporal scale of the management problem. Can managers afford to wait for the results of the experiment and can an experiment be conducted at the geographical scale called for?17 Second, resource managers need to consider how the adaptive management regime will interact with uncertainty. Will experimental findings be valid even in the face of uncontrolled events? Third, are the cost and benefits of the experiment relatively well-defined at the outset and will the results of the experiment have clear benefits? Finally, are stakeholders committed to an experimental approach and is there sufficient leadership and skill to carry the experimental approach through to completion? Depending on how these questions are answered, adaptive management may be a more or less promising approach. A similar argument is put forward by Allan and Gunderson (2011), who suggest that adaptive management is most appropriate where uncertainty is high, but where controllability of the resource is high and risk of negative consequences is relatively low. Walters and Hollings (1990) distinguish three approaches to adaptive management for large-scale natural resource management.18 The first is trial and error learning, which begins with more arbitrary policy choices but then incrementally improves policy design over time. The second is a “passive adaptive” approach, which uses historical evidence to construct a “best strategy.” They call the third approach “active adaptive,’ which they argue balances the goals of adopting the strategy that is expected to yield the best short term performance results with a longer-term goal of identifying the correct model of the ecosystem. They argue that passive adaptive approaches often lead to scientific contestation (the “battle of models”) that cannot really be adjudicated. It is useful to compare these different approaches to adaptive management with our earlier discussion of “decision experiments.” Both decision experiments and adaptive management experiments take place in messy realworld contexts. Since decision experiments are largely concerned with iterative-

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ly improving a particular design, they probably come closest in spirit to what Walters and Holling call “trail and error learning.” The adaptive management community, however, is somewhat dismissive of these less ambitious forms of learning.19 As Gunderson and Light argue: While many managers claim to be practicing adaptive management, most practice some form of trial and error management or management by objective with updating. That is, social objectives are determined, management actions are structured to attain those objectives, then progress towards those objectives is evaluated, and actions modified as needed to meet objectives. One key distinction between these approaches is that adaptive management assumes policy failures will occur and that they provide a valuable contribution for learning, while other approaches seek to avoid policy failure. Avoiding failures only acts to reinforce the status quo and precludes opportunities for learning while doing (2006, 327). Given the fact that more ambitious adaptive management strategies have generally been disappointing, perhaps this community might want to reassess the value of trial and error learning as a form of design experiment? We find tensions in adaptive management analogous to the tension between Campbell’s verificationist model and the more social model of experimentalism advanced by Jane Addams. Karkaainen (2003) points out that the Walters and Hollings view of adaptive management regards it quite specifically as “scientific hypothesis testing.” However, he also points to a “broader view” of adaptive management that regards this scientific hypothesis testing approach as overly managerial and expert-based.20 This broader model emphasizes the engagement of stakeholders in adaptive management, stressing that adaptive management is a social process that requires joint definition of problems.21 There is clearly some tension between expert versus more collaborative versions of adaptive management (Hitema, Mostert, Egas, Moellenkamp, Pahl-Wostl, and Yalcin 2009; Jacobson et al 2009).22 Without concerted strategies to engage stakeholders and create two-way communication between experts and stakeholders, adaptive management has a tendency to become an expert-led process (Arnold, Koro-Ljungberg, and Bartels 2012; Stringer et al. 2006). Failure to bridge this gap, however, can undermine the long-term stakeholder commitment to adaptive management. “Adaptive co-management” is a term coined to connect the ideas of adaptive management and collaborative governance. The literature on comanagement strongly stresses the role of collaboration among stakeholders as a critical feature of the ability to adapt to socio-ecological change (Armitage et al. 2009). However, I note that the adaptive co-management literature tends to move away a specific discussion of experiments and instead stresses the generic features of learning. This literature places great value on experiential learning and also stresses how stakeholders learn from each other. This shift from

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learning-from-experiments to learning-in-general may be analogous to Dewey’s interpretation of experimentation as an attitude toward inquiry. Yet it is also probably true that by widening the meaning of “adaptive” to include all learning, the adaptive co-management literature tends to lose the specificity of learning from experiments. 5. Conclusion I have tried to draw attention to what we mean when we talk about “democratic experimentalism.” What is a “democratic experiment”? I raise this question because I believe that the concepts of experiment and experimentalism, when applied to democratic politics, carry significant intellectual baggage. We first associate the term “experiment” with science and with specific scientific procedures. Then we must translate the term from the laboratory to the political arena. The first question the democratic experimentalism literature must confront is whether to treat randomized controlled experiments as the “gold standard,” even though the best we can probably do in the real world is to meet “quasi-experimental” standards. If we answer yes, then we are very much building on the earlier ideas developed by Donald Campbell in his analysis of the experimenting society. To do so has the advantage of offering a very distinctive methodology for knowledge generation. However, the downside is that achieving controlled conditions for this kind of experimentation is extremely demanding, particularly in the political world (as Campbell well understood). At the very least, if we follow Campbell’s lead, then the democratic experimentalism literature needs to give greater attention to the verification of experiments. If we choose to move away from Campbell’s framework, we avoid the demanding standards of experimental control, but we also lose some of the knowledge verification that comes with this control. I argued that if we want to treat experimentalism as a particular political and epistemic methodology, but do not want to be held to the gold standard of randomized controlled experiments, then one alternative is the framework offered by design science. A design experiment “tests” a design by introducing it into a real world situation and then closely follows its interaction within this context. As feedback about the design becomes available, the design is iteratively redesigned. The design science framework moves away from hypothesis testing under controlled conditions and instead focuses on generating richer observations about the wider set of interactions between the design and its context. Clearly, this approach to experimentation loses the powerful mode of verification associated with controlled experimentation (and for this reason, some might argue that it is not experimental at all). But it gains in at least two ways. First, it drops the pretense of being able to fully control social variables. Second, design experiments break down the barriers between researchers and research subjects, opening up wider opportunities for a “democratic” experimentalism.

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After examining the specific meaning of experimentation as applied to the social world, I turned to examining the various meanings that Pragmatism gives to experimentalism. Although elements of a verificationist view of experimentalism can surely be found in Pragmatism, especially in Peirce’s work, my reading suggests that Dewey regarded experimentalism quite broadly as an attitude of open inquiry. By moving away from a verificationist perspective, he was able to treat experimentalism as a general feature of democracy. For Dewey, the analogy between science and democracy is that both can be forms of cooperative inquiry. Thus, we do not really find Dewey talking about specific social experiments, but rather about democracy as embodying a particular culture of inquiry. Based on this analysis, I suggested that democratic experimentalism falls somewhere between Dewey’s very general stance toward democracy as inquiry and Campbell’s experimenting society. Like Campbell, democratic experimentalism does focus on program designs as specific experiments. But like Dewey, democratic experimentalism tends to regard these from a more generic perspective of inquiry than does Campbell. Finally, I investigated a concrete case of experimentalism – the adaptive management of natural resources. The purpose of this investigation was to explore these general issues in a concrete empirical case. Adaptive management was selected because it explicitly embraces experimentation in natural resource governance and because an extensive literature now reports on these experimental efforts. I found that the tensions around the meaning of experimentation also appear in this literature. However, since this is a movement dominated by scientists, it is not surprising that the notion of experimentation largely conforms to the verificationist model advanced by Campbell. We also see from the reviews of this field that the experimental model has not fared well in everyday implementation. While it is difficult to draw any firm conclusions about whether these implementation failures relate directly to this model of experimentation, I feel it is legitimate to at least raise the issue. As the first section of the paper concluded, a verificationist model of experiment erects high barriers to successful implementation. I raise the possibility that a design science approach might fare better. I also point to the possibility that shifting toward a more general learning orientation – much as Dewey does – might deepen the democratic basis of adaptive management. Such moves would likely encounter the resistance of scientists devoted to a verificationist understanding of experiment. But these tensions are precisely the intellectual baggage that a democratic experimentalist movement must confront.

ACKNOWLEDGEMENTS The reflections in this essay were prompted by conversations with Gerry Berk, though he cannot be held responsible for the positions that I ultimately take.

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1. See Dehue (2001) for a history of social science thinking about experiments, leading up to Campbell’s 1969 statement. 2. Critics pointed to the ethical problems that could arise with Campbell’s experimenting society (Shaver and Staines 1971). 3. Oakely (1999) calls this a “retreat” from more rigorous experimentalist methods. 4. For a discussion of Campbell’s realist epistemology, see Campbell and Russo (1999). 5. Implicit in the logic of experimentalist governance, I believe, is the assumption that local experiments minimize the costs of a trial, while information pooling maximizes the learning benefits that arise from the conduct of these trials. 6. One advocate of design experiments, Jere Confrey, traces the inspiration for design experiments back to Dewey, among others (Confrey 2006). 7. However, Stoker and John distinguish design experiments from action research: “Design experiments, while doing something similar [to action research], are in fact rather different: the closeness to the researcher is not primarily about empathy and getting into the minds of the researched, but is about advancing design” (1999, 363). 8. Stoker and John identify nine criteria to guide design experimentation: (1) the design begins by thinking through causal processes and posing a clear question or hypotheses; (2) the experiment must be conducted in collaboration with policymakers, because it requires a degree of control over the intervention; (3) the intervention must be “decisive” in order to distinguish between the experimental intervention and existing practice; (4) the intervention has to be recorded in detail in order to trace the causal processes at work in the experiment; (5) design interventions are iteratively redesigned as new information becomes available; (6) the calibration and instrumentation of the design intervention are regarded as critical, since the policy researcher is interested in the causal responses to the intervention; (7) precision of observation and measurement (although largely qualitative) is stressed, because it is crucial for detecting the consequences of interventions; (8) because they require intensive documentation and observation, design experiments are conducted at one or a few sites, rather than at many sites (making generalization difficult); and (9) design interventions are evaluated with respect to the usefulness of the design rather than according to some objective standard of truth. 9. MacGilvray argues that Pragmatist experimentalism arises from a broad antidualism: “Born out of frustration with the paralyzing conundrums of Cartesian dualism, [Pragmatism] substitutes for the subject/object and realist/idealist divides an experimental conception of truth: Those things are true which are verified through transaction with nature; that is, through experience. Verification, in turn, is defined in terms of usefulness: A proposition may be said to be verified if it serves as a useful guide to future conduct.” (1999, 545). 10. For additional insight into Addams’s experimental approach to social reform, see Schneiderhan (2011). 11. Hildebrand summarizes his case for the relationship between democracy, inquiry, and objectivity: “Democracy is a way of life that empowers communities (and individuals) to express and secure their values by engaging in the epistemic process of social or public inquiry. Pragmatic objectivity is a virtue exemplified by inquiries with processes that are accessible, transparent, and amenable to challenge or revision. Democracy and objectivity are mutually supporting because (a) objectivity is an

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epistemic virtue made possible by the conditions of democracy, and (b) a democracy can survive and sustain these conditions only when its citizens seek objectivity in their inquiries (and maintain institutions, like schools or public-minded journalism, that nurture the prerequisite capacities for inquiry) (2011, 596). 12. Morris (1999), for example, argues that although Dewey embraced science, he was a “postpositivist” (as opposed to a postmodernist) who emphasized the role of science in discovery. 13. MacGilvray argues that “Because experimental intelligence is a tool of all sentient creatures, there is no reason in principle to think that the experimental attitude could not be adopted by any particular individual toward any given set of social arrangements or institutions.” Furthermore, “Because experimental inquiry has had enormous success in securing human goods, we should ceteris paribus expect greater good to be achieved through its extension into new areas of endeavor. The experimental approach to experience is therefore fundamentally egalitarian – all may reasonably be expected to adopt it and profit thereby.” (551–552). 14. Lee (1999) provides a particularly clear definition of experimentation in the context of adaptive management: “Experimentation has three components: a clear hypothesis, a way of controlling factors that are (thought to be) extraneous to the hypothesis, and opportunities to replicate the experiment to check its reliability. These guide the selection of treatments applied to test hypotheses, and the selection of techniques that define what is being controlled and which measurements are replicated. Hypothesis, controls, and replicates are all import to reliable knowledge but none is easily achieved in conservation practice.” 15. However, different approaches to adaptive management may place more or less emphasis on its experimental aspects. In an analysis of the adaptive management literature, McFadden, Hiller, and Tyre (2011) suggest that a “decision-theoretic” approach makes experimentation less central than does a “resilience-experimentation” approach. 16. In terms of persuading courts of the legitimacy of adaptive management, however, Ruhl and Fishman (2010) note that agencies fare better in large-scale management regimes than in small-scale regimes. 17. Walter and Hollings note that “Management experimentation is often meaningless in settings where no value is placed on the long-term utility of experimental results” (1990, 2062). 18. See also Lee (1999) for a framework that distinguishes adaptive management as one strategy of learning, distinct from trial and error learning. 19. Ruhl and Fishman argue that “From theory to policy to practice, at each step forward in the emergence of adaptive management something has been lost in the translation. The end product is something we call ‘a/m lite,’ a watered-down version of the theory that resembles ad hoc contingency planning more than it does planned ‘learning while doing’ (2010, 426). 20. The emphasis on experimentation suggests a “rational planning” model of policymaking, which has long been attacked by political scientists as ignoring politics (Hitema et al. 2009; McLain and Lee 1996). 21. A number of studies stress the importance of developing shared understanding and shared problem definitions among stakeholders (Stringer et al. 2006). In a study of several cases of adaptive management, McLain and Lee (1996) found that adaptive management failed to create forums for promoting shared understanding among stakeholders. In their analysis of the failures of collaboration in the Glen Canyon Dam

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Adaptive Management Program, Susskind, Camacho, and Schenk argue that participants in successful collaboratives must “agree on the research questions that need to be answered and methods for addressing them” (2012, 49). Cundill, Cumming, Biggs, and Fabricus (2011) argue for the application of soft systems thinking to adaptive management, which stresses the role of stakeholders in the emergent definition of the management problem. 22. They make an argument for building bridges between an experimental and a collaborative adaptive management: “...collaborative processes ought not to be seen as simply a ‘graft’ in the early phases of [experimental adaptive management]. Without stakeholder participation in data collection and interpretation, and training in the use of tools that enable knowledge models to be updated, [experimental adaptive management] risks becoming detached from those who need to learn. Furthermore, any knowledge created may remain privileged” (2009, 487).

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Campbell, Donald T. 1982. “Experiments as Arguments,” Knowledge: Creation, Diffusion, Utilization 3(3): 327–337. Campbell, Donald T. 1970. “Considering the Case Against Experimental Evaluations of Social Innovations,” Administrative Science Quarterly 15(1): 110–113. Campbell, Donald T. 1969. “Reforms as Experiments,” American Psychologist 24: 409–429. Allan Collins, Diana Joseph, and Katerine Bielaczyc. 2004. “Design Research: Theoretical and Methodological Issues,” Journal of the Learning Sciences 13(1): 15–42. Confrey, Jere. 2006. “The Evolution of Design Studies as Methodology,” in The Cambridge Handbook of the Learning Sciences, ed R. Keith Sawyer (Cambridge, UK: Cambridge University Press), pp. 135–152. Cundill, G, G. S. Cumming, D. Biggs, C. Fabricus. 2012. “Soft Systems Thinking and Social Learning for Adaptive Management,” Conservation Biology 26(1): 13–20. Dehue, Trudy. 2001. “Establishing the Experimenting Society: The Historical Origin of Social Experimentation According to the Randomized Controlled Design,” American Journal of Psychology 1114(2): 283–302. Dewey, John. 1930. “From Absolutism to Experimentalism,” in Contemporary American Philosophy: Personal Statements, ed. George P. Adams and William P. Montague (New York: Russell and Russell), pp. 13–27. Dorf, M. C., and C. Sabel. 2000. “Drug Treatment Courts and Emergent Experimentalist Government,” Vanderbilt Law Review 53: 831–883. Dorf, M. C., and C. Sabel. 1998. “A Constitution of Democratic Experimentalism, Columbia Law Review 98(2): 267–473. Dunn, William N. 2002. “A Pragmatic Strategy for Discovering and Testing Threats to the Validity of Socio-technical Experiments,” Simulation Modelling Practice and Theory 10: 169–194. Dunn, William N. 1988. “Methods of the Second Type: Coping with the Wilderness of Conventional Policy Analysis,” Policy Studies Review 7(4): 720–737. Dunn, William N. 1982. “Reforms as Arguments,” Knowledge: Creation, Diffusion, Utilization 3(3): 293–326. Eppel, Elizabeth, David Turner, and Amanda Wolf. 2011. “Experimentation and Learning in Policy Implementation: Implications for Public Management,” Institute of Policy Studies Working Paper 11/04. Evans, Rand B. 1990. “William James, ‘The Principles of Psychology,’ and Experimental Psychology,” American Journal of Psychology 103(4): 433–447.

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Farrelly, M., and R. Brown. 2011. “Rethinking Urban Water Management: Experimentation as a Way Forward?” Global Environmental Change 21: 721–732. Gregory, R., D. Ohlson, and J. Arvai. 2006. “Deconstructing Adaptive Management: Criteria for Applications to Environmental Management,” Ecological Applications 16(6): 2411–2425. Gross, Matthias. 2009. “Collaborative Experiments: Jane Addams, Hull House, and Experimental Social Work,” Social Science Information 48: 81–95. Gunderson, Lance, and Stephen S. Light. 2006. “Adaptive Management and Adaptive Governance in the Everglades Ecosystem,” Policy Sciences 39: 323–334. Hamill, John F., and Theodore S. Melis. 2012. “The Glen Canyon Dam Adaptive Management Program: Progress and Immediate Challenges,” in River Conservation and Management, ed. Philip Boon and Paul Raven (Malden, Mass.: Wiley-Blackwell), p. 325–338. Haworth, Lawrence. 1960. “The Experimental Society: Dewey and Jordan,” Ethics 71: 27–40. Hildebrand, David L. 2011. “Pragmatic Democracy: Inquiry, Objectivity, and Experience,” Metaphilosophy 42(5): 589–604. Hlebowitsh, Peter S. 2006. “John Dewey and the Idea of Experimentalism,” Education and Culture 22(1): 73–76. Hitema, D., E. Mostert, W. Egas, S. Moellenkamp, C. Pahl-Wostl, and R. Yalcin. 2009. “Adaptive Water Governance: Assessing the Institutional Prescriptions of Adaptive (co-) management from a Governance Perspective and Defining a Research Agenda,” Ecology and Society 14(1): 26. Online at http://www.ecologyandsociety.org/vol14/iss1/art26/. Jacobson, K., F. D. Hughey, W. J. Allen, S. Rixecker, and R. W. Carter. 2009. “Toward More Reflexive Use of Adaptive Management,” Society & Natural Resources: An International Journal 22(5): 484–495. Karrkainen, Bradley. 2003. “Adaptive Ecosystem Management and Regulatory Penalty Defaults: Toward a Bounded Pragmatism,” Minnesota Law Review 87: 943–998. Layzer, Judith A. 2008. Natural Experiments: Ecosystem-Based Management and the Environment. Cambridge, Mass.: MIT Press. Lee, Kai. 1999. “Appraising Adaptive Management,” Conservation Biology 3(2): 3. Lee, Kai. 1993. Compass and Gyroscope. Covelo, Cal.: Island Press. MacGilvray, Eric A. 1999. “Experience as Experiment: Some Consequences of Pragmatism for Democratic Theory,” American Journal of Political Science 43(2): 542–565.

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McFadden, Jamie E., Tim L. Hiller, Andrew J. Tyre. 2011. “Evaluating the Efficacy of Adaptive Management Approaches: Is There a Formula for Success?” Journal of Environmental Management 92: 1354–1359. McLain, Rebecca J., and Robert G. Lee. 1996. “Adaptive Management: Promises and Pitfalls,” Environmental Management 20(4): 437–448. Morris, Debra. 1999. “‘How Shall We Read What We Call Reality?’ John Dewey’s New Science of Democracy,” American Journal of Political Science 43(2): 608–628. Murphree, Idus. 1963. “The Experimental Nature of Belief,” Journal of Philosophy 60: 309–317. Norton, Bryan G. 1999. “Pragmatism, Adaptive Management, and Sustainability,” Environmental Values 8: 451–466. Oakley, Ann. 1998. “Public Policy Experimentation: Lessons from America,” Policy Studies 19(2): 93–114. Overdevest, Christine, Alena Bleicher, and Matthias Gross. 2010. “The Experimental Turn in Environmental Sociology: Pragmatism and New Forms of Governance,” in Environmental Sociology: European Perspectives and Interdisciplinary Challenges, ed. M. Gross and H. Heinrichs (Dordrecht: Springer), pp. 279–294. Pawson, Ray, Trisha Greenhalgh, Gill Harvey, and Kieran Walshe. “Realist Review – A New Method of Systematic Review Designed for Complex Policy Interventions,” Journal of Health Services Research & Policy 10 (supplement 1): 21–34. Pollak, Johannes, and Peter Slominski. 2009. “Experimentalist but not Accountable Governance? The Role of Frontex in Managing the EU’s External Borders,” West European Politics 32(5): 904–924. Ruhl, J. B., and Robert L. Fischman. 2010. “Adaptive Management in the Courts,” Indiana University, Maurer School of Law Faculty Publications, paper 139. Online at http://www.repository.law.indiana.edu/facpub/139. Sanderson, Ian. 2009. “Intelligent Policy Making for a Complex World: Pragmatism, Evidence, and Learning,” Political Studies 57: 699–719. Schneiderhan, Erik. 2011. “Pragmatism and Empirical Sociology: The Case of Jane Addams and Hull-House, 1880-1895,” Theory and Society 40: 589–617. Shaver, Phillip, and Graham Staines. 1971. “Problems ‘Experimenting Society’,” Urban Affairs Quarterly 7: 173–186.

Facing

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Stoker, Gerry, and Peter John. 2009. “Design Experiments: Engaging Policy Makers in the Search for Evidence about What Works,” Political Studies 57: 356–373.

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Stringer, Lindsay C., Andrew J. Dougill, Evan Fraser, Klaus Hubacek, Christina Prell, and Mark S. Reed. 2006. “Unpacking ‘Participation’ in the Adaptive Management of Social Ecological Systems: A Critical Review,” Ecology and Society 11(3): 39. Online at http://www.ecologyandsociety.org/vol11/iss2/art39/. Susskind, Lawrence, Alejandro E. Camacho, and Todd Schenk. 2012. “A Critical Assessment of Collaborative Adaptive Management in Practice,” Journal of Applied Ecology 49: 47–51. Taylor, Eugene. 2006. “An Epistemological Critique of Experimentalism in Psychology; or, Why G. Stanley Hall Waited Until William James was Out of Town to Found the American Psychological Association,” Annals of the New York Academy of Sciences 727(1) 37–61. Thrower, Julie. 2006. “Adaptive Management and NEPA: How a Nonequilibrium View of Ecosystems Mandates Flexible Regulation,” Ecology Law Quarterly 33(3): 871–896. Tyre, Marcie J., and Eric von Hippel. 1997. “The Situated Nature of Adaptive Learning in Organizations,” Organization Science 8(1): 71–83. Waks, Leonard J. 1998. “Experimentalism and the Flow of Experience,” Educational Theory 48(1): 1–19. Waks, Leonard J. 1997. “Post-experimentalist Pragmatism,” Studies in Philosophy and Education 17: 17–29. Walters, Carl J. 2007. “Is Adaptive Management Helping to Solve Fisheries Problems?” AMBIO: A Journal of the Human Environment 36(4): 304–307. Walters, Carl J., and C. S. Holling. 1990. “Large-Scale Management Experiments and Learning by Doing,” Ecology 71(6): 2060–2068. Weber, Eric Thomas. 2011. “What Experimentalism Means in Ethics,” Journal of Speculative Philosophy 25(1): 98–116. Weiss, Robert S., and Martin Rein. 1970. “The Evaluation of Broad-Aim Programs: Experimental Design, Its Difficulties, and an Alternative,” Administrative Science Quarterly 15(1): 97–109. Wiener, Philip P. 1956. “Peirce’s Experimentalism and Practicalism,” Philosophical Studies 7(5): 65–68.

Chris Ansell Department of Political Science University of California, Berkeley Berkeley, California 94720-1950 United States

Contemporary Pragmatism Vol. 9, No. 2 (December 2012), 181–204

Editions Rodopi ©2012

Experimental Pragmatism in the Third Globalization Justin Desautels-Stein

Pragmatism dominates contemporary legal thought, but knowing this isn’t knowing so much. Legal pragmatism means different things to different people, and as this essay argues, minimalist and experimentalist forms of regulation both share a broadly pragmatic sensibility about law and democracy. As a consequence, we need to tease out the various threads of legal pragmatism in the hope of distinguishing the pragmatisms that work from the ones that don’t, or less pragmatically, the ones that are just from the ones that are not. This knowledge will come from an ongoing assessment of the political stakes imminent in the pragmatisms, and an understanding of where and when pragmatists might have parted ways from their liberal roots. Of course, we may very well want to keep these roots. But unless we know something about the new pragmatic liberalism, and from whence it came, the interminable circles of tired discourse against which we use our James and Dewey to rally, will remain curiously unbroken.

1. Introduction It’s a tricky business setting out to say something meaningful about long swaths of history, if not a silly one. When we find ourselves wanting to argue how a particular idea had a special purchase at a particular moment amidst some population, trouble’s surely on its way: How concrete is the idea? Who actually held it? Why did it matter? Were they elites, and if so, why is a focus on elites so important? What about the social history of the idea? What about the effects of the idea on the ground? Were they less or more important? How did the effects play themselves out? Universally? And what caused the idea in the first place? Is the idea important at all, or should we focus on the material conditions in which the idea arose? Why do we care?1 So yes, intellectual history is tricky business, but as the early Pragmatist philosophers taught us,2 we needn’t fear the briar patch if the trip’s worth our while, and in this case, I believe that it is.3 In this essay, I follow the intuition that one type of such history – the mapping of American Legal Thought – is a

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tremendously fruitful project, and look to locate a still obscure though surely ascending mode of legal reasoning known as “experimental pragmatism.”4 Though there are several maps to choose from, 5 my methodological point of departure relies on Duncan Kennedy’s analysis in his “Three Globalizations of Law and Legal Thought.”6 In that work, Kennedy argues that since the U.S. Civil War, lawyers, judges, and policymakers in the United States have been participants in three phases of a global legal consciousness. Each phase globalized, Kennedy explains, at times representing the movement of legal ideas from Europe to the U.S., and at others in the reverse. The first globalization involved the transmission of “classical” ideas from Europe to the U.S., the second globalization involved more of a back and forth cross-Atlantic movement of “social” legal ideas, and the third globalization, in which we are now living, holds the United States at the core. What is helpful to understand about the map is that not everything that is happening now is necessarily indigenous to the contemporary legal thought of the third globalization. It’s better to think of contemporary legal thought as a style or aesthetic than a period of time, such that we may very well see contemporary jurists operating in the mode of, say, classical legal thought, just as contemporary musicians might perform in a style that was for more popular a hundred years ago. The immediate question is therefore whether experimental pragmatism is a contemporary style – a style of law and policy that we would recognize as indigenous to the present moment. In the discussion that follows, I will cautiously answer this question in the affirmative. Unlike the unusual fashionista intent on wearing a 17th century peruke to the corner coffee shop, experimental pragmatism appears to be an established aspect of the administrative landscape. Thus, if we have a map of contemporary legal thought without a spot for experimentalism, then it probably should. More importantly, experimental pragmatists like Charles Sabel and William Simon seem committed to the use of an eclectic regulator approach, along with a broadly “liberal”7 view of social welfare, both of which are hallmarks of the contemporary mode of the third globalization. Consequently, the essay will conclude with a finding that experimental pragmatists are natives in the third globalization, even if they display extraordinary affinities with workers in the second. Before moving on to the story of the three globalizations, and the place of experimental pragmatism in that story, it’s important to underline the importance of the effort. One value in play is the value we place on understanding our legal world. To the extent we are able to do it well, mapping the structures of legal reasoning enables us to see coherence where we once saw chaos, and the rhyme of doctrinal choice if not the reason. More importantly, however, is the connection between mapping and the urgent need for reform. This connection reveals itself in two ways. On the one hand, the rooting of a particular mode of legal thought in its political and social context assists in the important work of unsettling our

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received expectations about the provenance of our beliefs. When we recall the bloodied origins of classic liberalism, the terrible choices at stake in the shift to modern liberalism, the weird and chilly emergence of neoliberalism, and the Willy Wonka world that seemed to make treats out of them all – when we recall these contexts we bring focus to the political stakes in the various styles of our contemporary administrative expertise. On the other hand, mapping experimentalism on the terrain of American Legal Thought gives us a handle on what to make of its reformist potential. Unless we know something about the styles against which experimentalists and everybody else implicitly situate themselves, we cannot know whether we are repeating history, repeating renewal. The effort to locate experimentalism on the map helps us to understand the political stakes in play, as well as to know whether it is really something new. These are values we all should find desirable, and in answering the question of where experimentalism fits in the third globalization, we are in their service. 2. Two Modes of Legal Consciousness The First Globalization: Classical Legal Thought. In what has become an increasingly standard way of looking at the map, we can begin with what Duncan Kennedy has coined “classical legal thought” (“CLT”) or classical legal consciousness.8 In Kennedy’s usage, legal consciousness is framed in the language of semiotics, where a consciousness is comprised of langue and parole.9 The langue consists of fundamental elements of the consciousness – its mode of reasoning, its conceptual vocabulary, and the like. In contrast is parole, which consists in the actual speech-acts, the legal arguments themselves that are spoken in the mode of the langue. Thus, while parole is indeterminate within the context of the structure of the langue, the langue itself is identifiable as a discrete set of ideas. According to Kennedy, the langue of CLT is a combination of three big ideas: (1) individualism, (2) a strict separation of the private sphere of the common law rules from the public sphere of coercive state regulation, and (3) a strategy of judicial interpretation known rather infamously as formalism.10 Taken together, Kennedy described the basic mode of reasoning in CLT as “the will theory,”11 which I might also characterize as a distillation of classic liberal legalism.12 To get a feel for this style, it might be helpful to recall John Locke’s argument about property rights and freedom of contract in his Second Treatise of Government.13 In Locke’s version of the state of nature, people possessed certain natural rights as a matter of their membership in the human race. These rights were fundamentally about individual freedom, and as a consequence, they were rights that clearly distinguished the “individualized” human being from the world of Aristotelian political animals. Individuals were morally autonomous, subject to no higher authority to which they had not consented. In this natural state of free and equal individuals, market transactions evolved. Because people have natural

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ownership over their persons, they also have natural ownership over the labor their bodies produce. Once that labor is mixed with a good, the good logically becomes that individual’s property. As property-owners, intelligent individuals tend to buy and sell their goods for a profit. Thus, in Locke’s state of nature things were pretty swell, except for the fact that a person’s property was never really very secure. So, in order to actually create a market order, Locke believed it was necessary to legalize property and the trade of property, or freedom of contract. As a result, Locke argued for a deliverance from the state of nature into a political society wherein the chief end of a new constitutional authority would be the creation and maintenance of property and contract rights. 14 The three elements of Kennedy’s model of classical legal thought are vividly illustrated in this famous little story. The actors are highly individualized in the sense that we are working after the major break with Aristotelian ideas about the function and purpose of human beings; society is split into a private sphere of pre-political (and pre-legal) natural rights and a public sphere of arbitrary government and law; the work of jurists in the public sphere are tasked with the enforcement of those natural truths born in the private sphere but that are only realizable once they have been legalized. To be clear, Kennedy is not suggesting that CLT was operating as early as the 17th century, for in fact he doesn’t see it as emerging as a recognizable style until after the Civil War. With a reign of more than half a century, CLT as a form of legal consciousness began its slow decline towards the end of the nineteenth century, and was finally branded as a gauche style of legal analysis by World War II.15 The Second Globalization: Social Legal Thought. In contrast to the high individualism of CLT, this new mode of legal analysis, which Kennedy calls social legal thought, or “the social,” involved a different set of ideas about how to use law as a means for arranging the social world. 16 The langue of social legal consciousness involved ideas about social interdependence, the application of technical expertise to the resolution of social problems, a preference for public administration over free competition, a wider appreciation of civil and political rights, and judicial strategy of purposive interpretation that sought to generate legal conclusions on the basis of perceived social needs. Thus, where jurists operating in the CLT style would often seek the resolutions of legal disputes via direct deductions from the natural truths of the private, pre-political sphere, jurists in the social style would more generally look for answers by asking questions about the social function of a given legal regime.17 Once we knew what a law was supposed to accomplish, and when we know whether we wanted it accomplished that way, we could only then go on to say whether a legal dispute should be resolved in one direction or another. 18 In the same way that the langue of CLT might be characterized as a classic style of “liberal legalism” à la Locke, the langue of social legal consciousness might be characterized as the crystallization of “modern liberalism.”19 Modern liberal legalism does not have the same sort of canonical representatives as classic liberalism, but its shortage of Olympian authorship is

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made up for in the staggering breadth of the writing that has been done in its service. A likely candidate for the master of the modern liberal style is Keynes, 20 but representatives are available from both the left and the right of the Keynesian emphasis on welfarism, administration, and employment.21 Indeed, Frank Knight, a founding member of the Chicago School, and Henry Carter Adams, one of the early writers in the first wave of institutional economics, have much in common with respect to a new role for law – a role that would stand in deep tension with judicial commitments to the will theory. 22 Let’s take two examples of social legal thought, one from the Supreme Court and one from the academy. In the Supreme Court’s 1948 decision in Shelley v. Kraemer,23 the topic was restrictive covenants: the capacity of property owners to prospectively determine to whom their land could, and could not, eventually pass. The controversial aspect of these covenants, however, was that they excluded the possibility on the basis of race. After a black family took ownership of a home that had been subject to a racially restrictive covenant, a neighboring family brought an action to enjoin the purchasers from taking residence. The Missouri Supreme Court agreed with the neighbors and held the covenant to be effective and enforceable. In approaching the question, the court was appropriately modest as the modern style would indicate: the majority did not hold all private agreements to have the color of state action, even though our notions of “bargain” and “ownership” would be meaningless in the absence of some constituting legal regime.24 Thus, the division between the independent market and the regulating state still held firm: “restrictive agreements standing alone cannot be regarded as a violation of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the Amendment have not been violated.”25 That dividing line, though it would hold, was nevertheless about to take a beating: “But here there was more. These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements.”26 Voluntary agreements between individuals seeking to buy and sell land, the court explained, did not implicate the state. The judicial enforcement of those agreements, however, did. Several beliefs common to social legal thought are here: (1) free competition in the market can have morally repugnant results; (2) government needs to intervene, aggressively if need be, to counteract those tendencies if the market is to be sustainable; (3) some amount of space, necessarily left undefined, should be left to the natural sphere of the market. Shelley brings it home: the court was deeply troubled by the social consequences of an unchecked property/contract matrix with respect to racial inequalities; the court argued for a more “realistic” view of the state, which definitively exercised its power not only through the executive and the legislature, but through its courts as well; the court still managed to carve out an area where the state was believed absent.

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On the academic side, we might take the corpus of work from Harold Laswell, Myres McDougal, and later W. Michael Reisman, or what was more colloquially known as “McDougal & Associates,” as illustrative. Like many others of their generation,27 Laswell and McDougal were post-realists in the sense that they were deeply informed by early 20th century attacks on both the liberalism and formalism of classic legal thought. That is, they were convinced not of only of the morally unacceptable nature of laissez-faire, but were equally certain about the intellectual bankruptcy of formalistic thinking about law and policy. Legal realists, and those like Laswell and McDougal who were working in the early wake of the realist onslaught, were all beholden to the emergence of American Pragmatism.28 The hand of John Dewey, for instance, is explicit in the work of famous realists like Felix Cohen and Walter Wheeler Cook, 29 as well as in the tremendously influential work of Laswell and McDougal.30 Laswell and McDougal’s “Policy Perspective” steadily developed over the course of the 20th century as what is probably best understood as an international variant of the legal process school. At bottom, the idea was to take many of Dewey’s insights and elevate them beyond critique and into institutional form. This new institutionalism would be guided by the freshest of cutting edge thinking about real social problems, the functional nature of law, an understanding of the deeply political nature of law, and a process-oriented program in which a legal regime would be put under constant pressure for reappraisal due to persistent exposure to local instances of problem-solving. In Dewey’s fashion, the basic goals of the regime would be very broad – in their case, it was “human dignity” – and the actual meaning of the goal would only be discovered through practice, and not before it. The goal values could be achieved only through “continuous reappraisal of the circumstances in which specific institutional combinations can make the greatest net contribution to the overarching goal.”31 To the extent that the goal might find itself manifested differently in the specifics of various local contexts, these “varying detailed practices by which the overriding goals are sought need not necessarily be fatal ... but can be made creative in promoting [our goals]. 32 Of course, given that Laswell and McDougal’s approach became a school of thought in its own right, it would be misleading to suggest that these were the indelible hallmarks of the New Haven School, but at least in 1959, this much was clear. In that year, Laswell and McDougal published one of the seminal tracts of their new post-realist policy approach in “The Identification and Appraisal of Diverse Systems of Public Order.”33 As mentioned, the fundamental point of departure was premised on avoiding old debates about the distinction between law and politics, or state and market. In order to bypass administrative hang-ups like these, the new policy perspective required of its agents an open-mindedness whereby “the institutional details of all systems of public order are open to reconsideration in the light of the contribution they will make to the realization of human dignity in theory and fact…”34 The basic architecture involved a series of tasks for the administrator: (1) orient oneself to

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the largest possible context of evolving social processes;35 (2) develop an understanding of how local communities generate expectations about the process of authoritative decision-making, whether these decisions are located in the public or private sphere; 36 (3) take a view of regulation as a mixture of prescriptive norms, softer recommendations, the application of both hard and soft norms, and an ongoing appraisal of the work of the norms at the streetlevel;37 and (4) keep in mind the broader framework goal of furthering human dignity, and in keeping with post-realist preference for process over rule, think of this goal as deliberately open-ended and as “a social process in which values are widely and not narrowly shared, and in which private choice, rather than coercion, is emphasized as the predominant modality of power.”38 3. Legal Pragmatism in Contemporary Legal Thought 3.1 The Third Globalization of Law and Legal Thought In his description of contemporary legal thought, Duncan Kennedy has suggested that the present mode of legal analysis consists in the transformed elements of both CLT and social legal consciousness.39 That is, where we might be tempted to see a social antithesis to a classical thesis, there is no synthesis to be found in contemporary legal thought. There is no new, dominant set of ideas that can be contrasted with the ideas of previous periods. Instead, we have the debris left over after the onslaught on CLT, as well as the debris left over from the various critiques deployed against the social, including those movements that emerged in the 1970s like neoliberal styles of legal discourse in the form of the law and economics approach, neoformalist critiques from within the discourse of modern liberalism, like liberal constitutionalism and republicanism, and styles of critique attempting to stand outside of liberal legalism altogether, like critical legal studies. Consequently, Kennedy suggests that while contemporary legal thought lacks a large integrating concept, we can nevertheless identify two basic and ultimately contradictory kinds of langue: neoformalism, transformed from its origins in CLT, and the balancing of conflicting considerations, transformed from its functionalist origins in social legal consciousness. There is no end to the sorts of examples we might choose to illustrate the combination of these modes of reasoning, and so to take one at random, consider the U.S. Supreme Court’s 2008 decision in Medellin v. Texas.40 The case was a famous and controversial one, dealing with the double approach of the United States judiciary to the International Court of Justice’s Avena decision,41 and a subsequent executive order from U.S. President George W. Bush seeking to implement that decision. 42 The dispute made its way to the ICJ via a complaint from Mexico against the United States, in which the former claimed that the latter had violated certain rights due to Mexican nationals under the Vienna Convention on Consular Relations. The ICJ ruled that U.S. officials had failed to fulfill those obligations,

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and President Bush ordered the state courts of Texas to review the conviction of the identified Mexican nationals in light of Avena.43 The question before the Supreme Court was what to make of all this. After sweeping aside the idea that the U.S. Supreme Court was obliged to follow orders either from the ICJ or the U.S. President, the Court sought to independently answer the question of whether the U.S. had certain obligations under the Vienna Convention, and in the parlance of the controversy, whether that treaty was self-executing. The Court was split. Writing for the majority, Chief Justice Roberts made a series of sharply defined neoformalist moves. First, Roberts acknowledged the validity and efficacy of international law. “No one disputes that the Avena decision ... constitutes an international law obligation on the part of the United States.”44 Roberts made it clear that the relevant question here was not whether international legal obligations exist, per se, but whether in this case it was possible to deduce a directly effective legal obligation from any relevant treaties regarding these Mexican nationals residing in Texas. This question, it turned out, was easy. The majority’s approach was this: Once the relevant texts are examined, a court is obliged to follow a legal formula instructing it to search out any language providing a private party with a right to enforce the treaty. Upon finding such language, a court should determine that the treaty is directly effective in court. Without the language, it’s not. Roberts didn’t find anything on point, and in the absence of the operative words, the majority concluded with a third point: “where a treaty does not provide a particular remedy, either expressly or implicitly, it is not for the courts to impose one on the States through lawmaking of their own.”45 This conception regarding an important distinction between law-making and law-applying, where the business of law-makers is necessarily ideological46 and the business of lawappliers is objective, was further elaborated in Justice Robert’s critique of Justice Breyer’s dissent. In making an argument that has all the hallmarks of the conflicting considerations approach, Breyer suggested that the presence or absence of certain language is totally beside the point. 47 In contrast to Roberts’s focus on formal rules, Breyer’s claim was that the “case law suggests practical, contextspecific criteria” that should be used to help a court decide whether a treaty was self-executing. Breyer’s approach demanded answers to a series of fact-based questions, such as the purpose of the treaty, its historical and political context, and whether the treaty seemed more or less focused on judicial application or not. Breyer recognized that these sorts of questions did not yield “a simple test, let alone a magical formula.”48 But given the actual and realistic unavailability of a meaningful textual approach like Roberts’, the focus on the function of the treaty and the effort to balance all the extraneous factors is all a court can really ever hope to do. The majority was unhappy with this response. Justice Roberts argued that Breyer’s notions were notoriously ad hoc, indeterminate, incapable of actually providing predictable guidance, and probably most important of all, “tantamount

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to vesting with the judiciary the power not only to interpret but also to create the law.”49 3.2 Neoformalism and Balancing Combined: The Dominance of Legal Pragmatism Medellin provides a good example of how the language of classic liberalism and modern liberalism has been blended in the standard moves of our contemporary jurisprudence. That is, as Kennedy rightly argues, the modes of reasoning that defined classical legal thought and social legal thought have not been borrowed wholesale from prior moments in the history of our jurisprudence. We have not looked into the closets of our parents, and rallied at the sight of clothes thought hideous by a former generation. Contemporary legal thought is different: neoformalism is not the will theory, and the conflicting considerations approach is not welfarist functionalism. These insights into the present situation do not, however, require us to see contemporary legal consciousness as only a pile of scattered debris. One possibility is that there actually is a new integrating concept, a new langue that can explain and embody the strange union of the transformed elements of the classic and modern forms of liberal legalism. That integrating concept could be something called “pragmatism.”50 At this point, we should be extremely careful about how we use the word. An immediate question is whether pragmatism is new, and at least on the account of the relationship between Cook and Dewey, between philosophical pragmatism and legal realism, our intuition may very well be to say that pragmatism is hardly new at all. Let us then disaggregate the term a bit in order to see if there is something about pragmatism that is indigenous to contemporary legal consciousness. A first category with which we can all feel comfortable is “philosophical pragmatism.” This is a pragmatism that holds itself out as a way of thinking about epistemology, ethics, is/oughts, universals, consequentialism, and other standards in the canons of moral and political philosophy. 51 We also feel good about the identity of the players, and especially about the role of the big three: Charles Sanders Peirce, William James, and John Dewey. There may be less comfort when we start to think about the availability of a body of work called “neo-pragmatist,” but the nature of the conversation is pretty familiar. It’s a conversation about the likes of Richard Rorty, Hilary Putnam, Stanley Fish, Jürgen Habermas, Richard Bernstein, and others that have attempted to interpret the older generation of pragmatists in light of a more particular theory of what philosophical pragmatism entails.52 One thing we can say with comfort about either brand of philosophical pragmatism is that it is not couched as a theory of law. To be sure, many of these scholars have applied the prior work to legal questions, but it’s always a matter of philosophy applied to law, not pragmatism as a theory of law first.53

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In contrast to philosophical pragmatism is a second category, popularized by Richard Posner.54 This is the “everyday pragmatism” in the vernacular. It is the pragmatism that is constantly deployed in the newspapers, by pundits and politicians.55 It is almost universally understood in the context of the United States as a badge of honor to be known as a pragmatist. These pragmatists are against ideology, against foundational theory, against theories of truth or right. They will do what they need to do in order to get it done. Whatever works. Action-oriented thinking. “Just Do It.”56 President Obama has consistently portrayed himself as a pragmatist, and against ideology, in precisely the same way that his opponents on the right do the same thing. 57 Of course, there are many complaints about everyday pragmatism. One is that it appears to have nothing at all do with its philosophical cousin. Among many other things, philosophical pragmatism is explosive. For the believer, it renders so many propositions about the known world into fuzz. Everything opens up for the serious pragmatist, where the saying of William James becomes a saying about everything: “William James was so natural, there was no way of knowing what he’d do next.”58 In this way of thinking, nature becomes a site of constant knowing and unknowing, where little if anything can be said about the way things ought to be done. It is an undeniably subversive approach to world order. In contrast, the everyday pragmatist is a soldier in favor of the status quo. She doesn’t believe in a so-called ideology, but she only wants to tinker at the margins, slowly and incrementally. It’s a view of the world that basically takes it as it is, hoping to slowly make it better, but knowing that it’s already pretty good to begin with. A third category of pragmatism is legal pragmatism, and it is legal pragmatism that may offer us a language that can capture the modes of reasoning we see in our contemporary jurisprudence. In terms of mapping legal pragmatism itself, there appear to be several varieties.59 One is “eclectic pragmatism.” Eclectic pragmatism is easy to understand, since it is essentially the layering of everyday pragmatism onto the problematics of legal discourse. Also, just as everyday pragmatism is alienated from philosophical pragmatism, so is eclectic pragmatism. It is this divorce that has led writers like Posner, Rorty, and Tom Grey to all make the claim for a legal pragmatism “freestanding” of the work of James, Dewey, and company. Before moving on to the other forms of legal pragmatism, the connection between eclectic pragmatism and contemporary legal consciousness deserves another word. After all, we might intuitively see a connection between the conflicting considerations side of things and eclectic pragmatism, but what of neoformalism? How does eclectic pragmatism ally with a style of jurisprudence which seems at first blush to be in tension with the basic commitments of the everyday pragmatist? In order to properly understand these questions, we need to distinguish between the self-identified legal pragmatist as an individual agent, either in the guise of a judge or administrator or whoever, and legal pragmatism as a form of

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legal consciousness. In the first case, we can look to the works of scholars like Cass Sunstein and Daniel Farber as representatives of an idea about a status-quo jurisprudence, based on an attraction to context and an abhorrence towards grand theory and foundations. The work of law should be a law that works, solving problems through an appreciation of economics, sociology, political science, and whatever other forms of knowledge-production may help us steadily move forward in the elaboration of a “better” law. In this sense, the eclectic pragmatist does not seem readily susceptible to the dynamics of neoformalism and its attachment to rights and right thinking. When we recognize that eclectic pragmatism is also a sensibility, and not merely a professional identity, this tension quickly fades. The average judge, the average associate at a law firm, the average policy wonk, the average “American,” doesn’t hold the same sorts of quasi-consequentialist commitments of a Sunstein and Farber. They are rather far more inclined to use whatever mode of reasoning will be the most successful in achieving their given ends. This is the mindset in which it becomes normal to hear big-firm associates, and even partners, talk of using critical legal studies, when it works to do so. It doesn’t matter what critical legal studies, or behavioral law and economics, or public choice theory, or human rights law, might actually mean in terms of its political stakes. The only thing that matters for the eclectic pragmatist is that they select the mode of reasoning, whether it falls within the langue of formalism or the langue of functionalism, that wins. If it gets the client what he wants, use it. If it gets a politician elected, do it. If it solves our ethical problems, try it. The notion that this form of legal pragmatism might constitute a contemporary legal consciousness comes into view when we bring liberal legalism back into the story. If classical legal consciousness was related to classic liberalism, and social legal consciousness was related to modern liberalism, where is liberalism in the legal consciousness that we have today? Eclectic pragmatism instructs us on the merits of having lost faith in either the classic or modern styles of liberal legalism. We no longer believe in the dominance of the will theory as the way in which to understand the role of law in the constitution of society, and we also no longer believe in the dominance of state interventionism as the universal corrective. And in the light of eclectic pragmatism, this is a moral good. In this view, faith in any particular liberal approach gets in the way of getting what we want, and getting what we want is what matters. The eclectic pragmatist has most assuredly lost faith in either classic liberalism or modern liberalism, which accounts for why contemporary legal thought consists in the transformed elements of CLT and the social, and not just a blending of those elements. But here’s the key: the eclectic pragmatist has not lost faith in liberalism. Indeed, what appears to have shaped up is a sort of “pragmatist liberal legalism” in which the jurist is completely committed to the vocabulary of classic and modern liberals, but at the same time denies the faith that classic and modern liberals had in the rightness of their

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respective modes of legal reasoning. The eclectic pragmatist also has faith, but it is a faith rooted in the rightness of liberalism, but not in any one of its predominant modes. Legal pragmatism thus sustains the paradoxical alliance between neoformalism and policy balancing. It keeps the two going – without pragmatism, we might very well see a different form of legal consciousness. If we weren’t committed to a crass vision of “what works,” something else would be necessary to justify the continuation of a much-maligned style of formalism. At the same time, it is eclectic pragmatism that inoculates policy balancing from fatal critique. It is pragmatism that makes it possible to say: “We do these things because they work, not because they’re right.” 4. Mapping Experimental Pragmatism Legal pragmatism appears to involve three major threads. After eclecticism is economic pragmatism and experimental pragmatism. I will pass over economic pragmatism for the sake of space, but only take note that it is a style of pragmatism that places a tremendous amount of weight on the norm of allocative efficiency, while at the same time avoiding being just another name for neoclassical law and economics. The champion of this style is Richard Posner.60 The rest of this essay is focused on the third style of legal pragmatism, experimentalism, and it takes a recent text from William Simon and Charles Sabel as a representation.61 In their most recent work on the topic, Sabel and Simon situate experimental pragmatists against two rival styles of law and policy work. 62 On the one side is the well-known “minimalism” of Sunstein & Associates63 and on the other is what Sabel and Simon call the “command and control” model of administration. For Sabel and Simon, minimalism is a new style of administration forged in the context of contemporary legal thought as a corrective for the failures of the mid-century welfare state. Though they do take minimalism as heavily focused on the neoclassical conception of efficiency analysis and the advantages of market simulation, Sabel and Simon do not equate it either with the neoliberal apparatus that emerged in the 1980s. Minimalism stands for something other than the free-market orientation of neoliberalism or the “command and control” ethos of modern liberalism, trying to take the good from both and shuffling their insights as needed. Minimalism is skeptical about both the wisdom of leaving too much power and discretion to clearly irrational market actors, but also leaving too much discretion to regulators who are clearly subject to capture. Markets fail, governments fail, and minimalism is set to offer a balanced approach to governance that understands both the strengths and weaknesses of the modern and neoliberal styles. Without transcending either, it recombines both in an attraction to the status quo, “static efficiency,” more of a market-based approach to welfare, and more of a government-based approach to nudging market choices in the “right” direction.

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Before going further, I should clarify that I take Sunstein’s minimalism as a stock example of the eclectic brand of contemporary legal pragmatism, and I will use “minimalism” and “eclecticism” interchangeably. Depending on the text upon which we wish to focus (and there are a lot of texts), Sunstein is either performing as an eclectic pragmatist or an economic pragmatist. These do seem to be distinct styles of legal analysis, and Richard Posner most clearly represents economic pragmatism, while an obvious example of eclectic pragmatism is found in the writing of Justices Breyer and Anthony Kennedy. Sunstein’s minimalism seems to veer back and forth between being more or less economically inclined, but regardless of whether we put him in the camp with the eclectics or economists, there seems little doubt that he is deploying a contemporary form of legal pragmatism. As for the command and control model against which Sabel and Simon contrast both minimalism and experimentalism, this model is of apiece with what I have been calling the modern liberalism of Duncan Kennedy’s period of social legal thought. Thus, I use “command and control,” “modern liberalism,” and “social legal thought” interchangeably. In the remainder of this section the discussion will first summarize the basic ideas of experimental pragmatism as worked out in Sabel and Simon’s “Minimalism and Experimentalism in the Administrative State.” It will then go on to ask whether Sabel and Simon’s cartography seems right: (1) Does experimental pragmatism deserve a distinct location in the terrain of contemporary legal thought, or is it subsumed under the broader groupings of eclectic and economic pragmatism? (2) Does experimental pragmatism provide us with a distinctive break with the jurisprudence of modern liberalism, or is it best understood as a throwback, an attempt to recapture a spirit lost? 4.1 The Basics Sabel and Simon situate experimental pragmatism along two dimensions, “Regulation” and “Social Welfare,” which might grossly be characterized as proxies for the “form” and “substance” of experimentalism, respectively. In contrast to the minimalist habit of using efficiency as a chief norm in the crafting of regulatory regimes, experimental pragmatists are keener on regimes guided by a premium on reliability. In the literature on management theory, reliability is a term of art, involving an administrative outlook where the hope is for managers and workers to operate in an atmosphere where learning and adaptation to changing circumstances is constantly fostered. Conceivably inefficient or non-optimal eventualities are regarded as opportunities for growth, and the emergence of problem areas or defects are absorbed into a perpetual process of reassessment and reappraisal. Sabel and Simon appropriately recognize that some might counter that reliability concerns are simply concerns of a more-broadly conceived idea about efficiency. But as Sabel and Simon explain, there does seem to be a real tension

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between experimentalist techniques and efficiency techniques to the extent that the economic pragmatist will be preoccupied with strong market signals like price, where the experimental pragmatist is looking at a broad spectrum of signals, including those that are weak, subtle, and deserve on-the-spot complex discretion. If too much attention is paid to price, the focus on efficiency can undermine a regulatory framework of reliability. For the efficiency-minded, cost-benefit analysis and regimes that create mock-markets, like tradable emission programs, the main driver is a static assessment of price. Instead of a default openness to a host of varying sorts of signals and norms, the efficiency paradigm generates a tunnel vision for simplicity and short-term costs, which Sabel and Simon suggest is ultimately counter-productive. Experimental pragmatists believe that our broadly defined goals, whatever they might be, will best be served though complex responses with a view for the long-run, and not the reverse. As we saw in the work of Lasswell and McDougal, this kind of big picture view is explicitly rooted in John Dewey’s pragmatism. They write, “Experimentalism takes its name from John Dewey’s political philosophy, which aims to precisely accommodate the continuous change and variation that we see as the most pervasive challenge of current public problems. Policies should be ‘experimental in the sense that they will be entertained subject to constant and well-equipped observation of the consequences they entail when acted upon, and subject to ready and flexible revision in the light of observed consequences...’”64 Sabel and Simon understand this prime directive as involving a perspective that at bottom rejects the idea that regulation works best through the articulation of clear goals and the aggressive implementation of those goals. The focus instead is on Dewey’s notion of inquiry: the experimental pragmatist is not too worried about precisely defined goals precisely because our goals only come into focus in the actual process of doing, and not before the doing has been done. It’s just a mistake to set out a goal of optimizing a particular industry since the notion of optimizing may very well fool the regulator into chasing chimerical ideas instead of realizing, in the day-to-day, the intertwined twists and turns of crisis and victory. Sabel and Simon write: “In the realm of uncertainty, policy aims cannot be extensively defined in advance of implementation; they have to be discovered in the course of problemsolving.”65 For the experimental pragmatist, following Dewey, the first lesson requires the establishment of a very broad framework goal, but a goal that must be open to constant revision. That is, the goal should be allowed to change after we come to understand the goal as it seems to present itself in the march of the routine. Next, our policymaker or legal analyst at the center will want to devolve as much discretion as possible to local actors, since it’s in the local that the routine is most clearly understood. The local actors produce, record, compile, and report results as regularly as possible back to the center, and together the local actors and the administrators at the center coordinate and evaluate. The

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framework goals themselves are periodically evaluated in light of the process, helping dissolve the distinction between the initial “value” and the “facts” to which the value are ostensibly applied – a distinction key to the work of economic pragmatists. In the context of regulation, Sabel and Simon suggest that this approach involves a structural design in which all the players, whether public or private, whether at the center or periphery, are induced into a culture of self-reporting and self-critique which will excel in the on-going work of getting done what we want to get done that is absent in the mainstream. Another advantage is that it avoids the critique of the welfare state which pointed to the inefficiency of the bureaucrat, ultimately unable to get her hands on the information relevant to the deployment of her apparent expertise. She could never know the market as well as the market knew itself. In contrast, the experimentalist lives in a sea of data – it just keeps on flowing in, flowing out, frothing about: the local is on a par with the center here, as opposed to the old idea of the interventionist state. In the context of social welfare, Sabel and Simon push the conversation away from the form of rule-making and towards its content. The minimalist apparatus of experimental pragmatism will be helpful in certain issue areas, Sabel and Simon suggest, “but the approach seems implausible or question begging with respect to many of the most important problems.”66 The crux of the assertion is that eclectic pragmatists have failed to adequately take stock of the basic social changes in the playing field over the last half-century. In order to properly figure out the role of government in the distribution of wealth and resources (if that’s even the right question), experimentalists are in tune with the realities of 21st century social structures in ways that minimalists are not. The reasons for this are plain. The minimalist approach to social welfare involves the same approach as it did to regulation: it is eclectic, and based on a scheme of constantly recombining the assumptions of modern liberals and neoliberals. The minimalist toolkit, as it were, ends around 1980. To be sure, the minimalist approach of eclectic pragmatists represents an alternative to the command and control model of modern liberalism, as well as the libertarian feel of the Washington Consensus, but what is new about it is the eclectic mixing of the ideas – not the arrival of a new image of market-state relations. According to Sabel and Simon, the substantive proposals of experimental pragmatists with regard to the proper role of market and state are not dated to the 1980s, but not because a new idea about political economy has emerged. If this were the case, it might be an example of the old-fashioned distinction between fact and value, goal and implementation. Instead, experimental pragmatists are current in a way that eclectics are not because eclectic pragmatists have sought to adapt the assumptions of the New Deal and the Washington Consensus to the present, instead of leaving those assumptions behind in favor of finding our answers in the real world of problem-solving. For example, Sabel and Simon explain how the basic points of departure for New Deal thinking involved an architecture of social insurance built around tax and

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transfer cash distributions and framed in terms of market-labor relationships. The idea was to target the everyman – an able-bodied English-speaking white male with a traditional nuclear family tracked into a job in which he’d stay for forty years. Instead of grasping the fundamental changes in society with respect to what kinds of people are now able to work, where they work, in what languages they work, and so on, Sabel and Simon argue that minimalists have “sought to preserve the New Deal emphasis on standardized, rule-defined cash benefits while broadening the scope of both the social insurance and public assistance programs.”67 Minimalists, on this view, are behind the times. In order to make law more functional and better attuned to social needs, experimental pragmatists are eager to do away with presumptions from the past. The policy approach of the experimentalist should be on the lookout for changing trends and incorporate a close-up focus on “highly individuated planning, pervasive policy measurement, and efforts to aggregate and disseminate information about effective practices.”68 The mechanism, as already stated, is public participation. In a way that distances itself from the pessimism of behavioral economics and resembles the literature on deliberative democracy, experimental pragmatists seek out operational plans in which local communities are leading the way in figuring out what is working out through public sharing, thinking, and critiquing. These local efforts need to be harmonized through a central system, but instead of the center giving the periphery a set of rules about the role of the state in the market, local groups should be always thinking about what is working best, for whom, and where. 4.2 Pragmatism, Realism, Liberalism Here, I want to situate Sabel and Simon’s discussion in the context of Duncan Kennedy’s map of American Legal Thought. As has already been said, I take minimalism as a strong illustration of eclectic pragmatism, which I have argued to be a motivating property in the “Third Globalization” of contemporary legal thought. Sabel and Simon would likely agree that minimalism is a contemporary posture, since they expressly articulate it as a current alternative to the command and control style of modern liberalism. Similarly, if they were to accept the premises of the Three Globalizations story, they would also accept the idea that experimental pragmatism fits in the contemporary mode, given that they see experimentalism as the other current alternative. Just being an alternative to modern liberalism, however, is not enough to merit a place on Kennedy’s map. As we have seen, contemporary thought is a combination of two left-over styles, namely, neoformalism and balancing. As I have argued elsewhere, eclectic pragmatism, including Sunstein’s version of it, does seem to capture a sensibility in which the jurist or policy expert is encouraged to shift between form and function, truth and consequence, in whatever way appears to fit the current need. What is new here is the accepted nature of the eclecticism – where at one point we may have identified a dominant faith

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in an individual will theory, or an expert bureaucracy, we now have faith only in the mantra of “doing what works.” While this may be a fair description of the minimalism in Sabel and Simon’s article, does it also capture experimentalism? Are experimental pragmatists similarly committed to a consequentialist view of neoformalist/balancing techniques? What distinguishes them from the eclectics? Of course, an articulation of just what it is that distinguishes experimentalists from eclectics was the whole point of Sabel and Simon’s article. To be sure, there can be no doubt that there are real and meaningful differences here, and if it were put to a vote between the two I would certainly be a cardcarrying member of the experimentalist party. But despite the operational contrasts, experimentalism and eclecticism seem anchored in a broadly similar orientation that becomes more and more clear when we take the birds-eye view. Consider the following. First, Sabel and Simon appear intent on presenting experimentalism as an administrative style that has already been planted. It’s not a utopian vision of a world yet to be – in fact, they argue that there has been “a fundamental policy reorientation along experimentalist lines in the United States, the European Union, and elsewhere since the 1990s.... Some of the Obama Administration’s most important initiatives, including the Food Safety Modernization Act and the Race to the Top education program, can only be understood in experimentalist terms.”69 Indeed, there is a growing list of examples of experimentalist work in the world to which Sabel and Simon are supplementing, not starting from scratch. From Toyota to the U.S. Navy, EPA’s Project Excel to the Nuclear Regulatory Commission, developments in child welfare reform to information trading at the WTO, experimentalist approaches seem everywhere. Of course, Sabel and Simon don’t want to go too far, and they are sure to remind that experimentalism is in its infancy. It’s young and unproven, but operating in the here and now. It is in this sense that minimalism and experimentalism therefore share a common ground in that they are both a part of the contemporary landscape – they are both practical, applicable modes of administration in the second decade of the 21st century. Consequently, as experimental approaches become more prevalent, they will likely take more of the blame going round, of which there is plenty to share. If this is right, and experimentalism is a meaningful aspect of contemporary legal thought, then an initial complaint might hold that Kennedy’s picture of the Third Globalization is incomplete. If the Third Globalization is a confluence of neoformalist techniques and balancing approaches, and experimentalism is something else, is the map wrong? I don’t think that it is, and this leads to a second point about the common ground upon which eclectics and experimentalists are working. Sabel and Simon hammer home the idea that experimentalism is better than eclecticism, and in the context of minimalist style of regulation their chief complaint is that minimalism just doesn’t work. They take efficiency as the grundnorm in play, and show how in case after case a singular focus on efficiency, optimal performance,

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and the techniques that make good on those norms like cost-benefit analysis and cap and trade are poor performers when it comes to actually doing what the regulations hope to do. Sabel and Simon explain how efficiency concerns undermine the fruitfulness of new learning opportunities 70 and sacrifice better results for quicker results,71 while cost-benefit analysis persistently gets the measurements of the costs and the benefits all wrong, or puts too much emphasis on centralized decision-making procedures unaccompanied by local assessments.72 Like cost-benefit analysis, Sabel and Simon see problems with cap and trade also involving workability.73 These problems, however, are problems at the margins. Sabel and Simon admit that cost-benefit analysis and cap and trade techniques are valuable, and efficiency is a truly great idea. They’re just not as valuable as eclectics would like to think. The upshot here is that the experimentalist critique of eclectic proposals flows out of a set of premises shared by the eclectics. Sabel and Simon know this, which again seems to suggest that they really do see experimentalism as part of the common fabric of the time, and not as anything alien to it. In fact, Sabel and Simon’s critique appears to portray an eclecticism in itself, chiding minimalists for being too preoccupied with a single norm at the expense of other norms which might also be valuable, if not more so. Indeed, as discussed above, a strong sense of eclectic pragmatism avoids any singular faith in a given approach, and to the extent minimalism really is in orbit around one vision of the market, this would suggest a more appropriate labeling of economic pragmatism, if not the neoliberalism of the Chicago School. The bottom line here is that experimental pragmatism, at least in the context of this one text, seems safely situated in the Third Globalization given its attraction to a bevy of norms, including efficiency. Remember, theirs is not a critique of efficiency, it is a complement to it. A third point regarding Sabel and Simon’s mapping of experimentalism, minimalism, and modern liberalism has to do with what they see as the proper fit between law and policy and the social world they are meant to govern. Sabel and Simon understand “the most pervasive challenge to current public problems” to be “the continuous change and variation” in society,74 and that “experimentalist regimes are especially well-suited for circumstances in which effective public intervention requires local variation and adaptation to changing circumstances.”75 Minimalists, Sabel and Simon argue, continue to operate on the old and out-dated assumption of modern liberalism (and/or neoliberalism), while experimentalism is precisely fashioned to craft an administrative style that makes law responsive to today’s social needs. It is here in Sabel and Simon’s critique of minimalist social welfare proposals that doubts creep in as to whether experimental pragmatism is indeed a contemporary legal style. There is no doubt that an idea about making law responsive to social needs is an emblem of contemporary legal thought, but it is well-known that it is here only as a relic of social legal thought. Indeed, it is a juristic technique that is more than a hundred years old at this point, and what

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may distinguish experimentalists is their somewhat neo-realist76 tenacity for a teleological jurisprudence. Whereas the fit between law and social need is a part of every serious policy program, experimentalists like Sabel and Simon don’t see it as just a “part” – it’s key. This central focus on changing social circumstance demands cognizance of the relation between experimental pragmatism, realism, and the sorts of functionalist projects found in the work of post-realists like Lasswell and McDougal. There’s no basis for thinking that the work of Sabel and Simon is merely a re-run of the work of Lasswell and McDougal, because it’s clearly not. But despite the differences, they look more and more marginal when we focus on the nature in which both scholarly duos build off a strong diet of Dewey, take a complex view of the relation between law and politics, eschew sharply defined policy goals in favor of broadly-stated framework goals that will be progressively defined through works of individual practice, and advocate the need for constant flows of information in an on-going process of reappraisal. So what? Should the filial relation between experimental pragmatism and post-realist projects from the likes of Lasswell and McDougal encourage us to locate Sabel and Simon in the bygone era of social legal thought? If the experimental critique of minimalist regulation is clearly in the mode of the Third Globalization, and its critique of minimalist social welfare policy is of apiece with the Second, what to do? A fourth point about Sabel and Simon’s discussion of experimentalism, minimalism, and modern liberalism might carry the day. In an article from 2004, Simon discussed the relation between “legal liberalism” and “legal pragmatism.”77 In the context of the mapping at work in this discussion, Simon appears to equate legal liberalism with modern liberalism: he associated it with a penchant for plaintiffs in tort and civil rights cases, defendants in criminal cases, a prioritization of moderate forms of equality and liberty, and a tendency to track the liberal-left side of the political spectrum. Simon’s liberalism clearly does not include, as a consequence, the legalism of either Locke or Hayek. As for “legal pragmatism,” Simon means for the label to describe experimentalism, and while he does admit that there are various breeds, his analysis is solely focused on the experimental style. Simon’s critique of liberal legalism is slippery. Coming from a deep baseline in critical legal studies,78 there is little doubt about the adversarial posture of Simon’s pragmatism. And the article is titled “the pragmatist challenge to legal liberalism” after all. At the same time, however, Simon seemed to be going out of his way to paint the critique as one coming from within liberalism. After surfacing some common complaints from critical theory, Simon distances himself from them. Noting that these critiques “remain important and, on some points, powerful,” Simon’s pragmatist approach would be “more grounded in the basic commitments of political liberalism.”79 Moving into the rest of the discussion, as a consequence, the reader may have expected legal pragmatism as

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the coming of something like a friendly amendment, and not as much of a radical overturning of liberal legalism. Towards the middle of the article, Simon addressed the issue directly. Simon explained, “At the risk of overemphasizing the contrast, I have formulated and organized the premises so as to emphasize their differences with Legal Liberalism. It is debatable whether the Legal Pragmatist perspective is best seen as a competitor to the Legal Liberalism that addresses itself to the whole field of lawyering, or rather as a complement that purports to be more appropriate to a range of situations but that concedes as a significant range to the Legal Liberal approach.”80 At the end, Simon left this relational question for another day, wondering whether an ultimate answer might be less useful than a forwardlooking perspective on better discourse, whether it’s called liberal or pragmatic or whatever. Though I do admire Simon’s cautious tone, and appreciate the complicated nature of the question, I find it appropriate to come down with an answer here: Sabel and Simon are liberals. Now, in saying as much I don’t mean to identify them necessarily as modern liberals working in the language of social legal thought, exiling them from the terrain of the Third Globalization. Not at all. What I do mean to say is that experimental pragmatism, like eclectic pragmatism, depends on a toolkit that remains entirely comprised of the stuff of classic, modern, and neoliberalism. If, for example, we were to join Sabel and Simon with Lasswell and McDougal, we would expect to see the former pair joining the latter pair’s unquestionable loyalty to the modern liberal style. Sabel and Simon have lost faith in a single style of liberal legalism, as have all natives of contemporary legal thought. And yet, while they have no faith in any one style, their optimism is buoyed by a belief in the power of deliberative democracy and the truth of the liberal, autonomous, rational self. To sum up, there are four reasons for believing experimental pragmatism to be a representation of Duncan Kennedy’s description of contemporary legal thought. First, Sabel and Simon have argued that experimentalism is operational, and therefore a real administrative style in the contemporary scene. Of course, not everything that is happening is illustrative of contemporary legal thought – a great many instances are just holdovers from traditions in the past. But Sabel and Simon’s claim is that it is indeed new, and that it is explicitly formulated as an alternative to the command and control style of modern liberalism. Second, the experimentalist critique of minimalist regulation is clearly consistent with an eclectic preoccupation with “what works,” and for Sabel and Simon, a great deal of the minimalist regulatory apparatus just doesn’t. It wasn’t that efficiency concerns, cost-benefit analysis, or cap and trade programs suffered from political or philosophical defects, but rather that they didn’t perform in the manner in which Sunstein & Associates would hope. Third, the experimentalist critique of minimalist social welfare suggested a heavy reliance on the jurisprudential style of social legal thought and modern liberalism. The reliance was so heavy, and so important, that it was enough to doubt whether experi-

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mentalism might be better located in the Second Globalization. Fourth, experimental pragmatism appears to be ultimately committed to liberal legalism. This commitment is not to any single style of liberal legalism, but rather to the common liberal vocabulary to be found in the langue of classical and social legal thought. As a consequence, a tentative conclusion would hold that experimentalism is like minimalism in that they are both strands of the legal pragmatism animating so much of contemporary legal thought. This is a legal pragmatism that is notable for its attention to neoformalism, attraction to the weighing of conflicting interests, and belief in the combination of various styles of legal liberalism in the service of what works. Eclectic pragmatism, and its minimalist programs, is on all fours with this description. Experimental pragmatism, in contrast, favors function over form and deliberation over balancing. Experimentalism is therefore less central to the dominant conception of contemporary legal thought (which is a good thing for experimentalists), but indigenous to contemporary legal thought all the same: It has more functionalism than minimalism, and less formalism, but it is similarly committed to a pervasive if disenchanted liberalism. 5. Conclusion Legal pragmatism is a dominating quality of contemporary legal thought, but knowing this isn’t knowing too much. Legal pragmatism means different things to different people, and as this essay has argued, minimalism and experimentalism share a broadly pragmatic sensibility about law and its administration. It is therefore incumbent to tease out the various threads of legal pragmatism in the hope of distinguishing the pragmatisms that work from the ones that don’t, or more ambitiously, the ones that are just from the ones that are not. This knowledge will come from an ongoing assessment of the political stakes imminent in the pragmatisms, and an understanding of where and when we have jumped the liberal ship. Of course, we may very well want to stay on the ship – it certainly has its benefits. But unless we know something about the new pragmatic liberalism, and from whence it came, the interminable circles of tired discourse against which we use our James and Dewey to rally, will remain curiously unbroken.

NOTES 1. For two examples from the literature on critical legal studies, see Robert Gordon, “Critical Legal Histories,” Stanford Law Review 36 (1984), p. 57; John Henry Schlegel, “Does Duncan Kennedy Wear Boxers or Briefs? Does Richard Posner Ever Sleep? Writing About Jurisprudence, High Culture, and the History of Intellectuals,” Buffalo Law Review 45 (1997), p. 277.

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2. William H. Simon, “The Institutional Configuration of Deweyan Democracy,” this volume. 3. For discussion of an aesthetic approach, see Pierre Schlag, “The Aesthetics of American Law,” Harvard Law Review 115 (2002), p. 1047. 4. Justin Desautels-Stein, “At War with the Eclectics: Mapping Pragmatism in Contemporary Legal Analysis,” Michigan State Law Review (2007), p. 565. 5. For example, Morton Horwitz, The Transformation of American Law, 1870– 1960 (Cambridge, Mass.: Harvard University Press, 1979); Neil Duxbury, Patterns of American Jurisprudence (Oxford: Oxford University Press, 1997); David Kennedy and William Fisher, The Canon of American Legal Thought (Princeton, N.J.: Princeton University Press, 2006). 6. Duncan Kennedy, “Three Globalizations of Law and Legal Thought 1850– 2000,” in The New Law and Economic Development: A Critical Appraisal, ed. David Trubek and Alvaro Santos (Cambridge, UK: Cambridge University Press, 2006), pp. 25– 36. 7. For my understanding of this very broad term, see Justin Desautels-Stein, “The Market as a Legal Concept,” Buffalo Law Review 60 (2012), p. 385; Justin DesautelsStein, “Liberal Legalism and the Two State Action Doctrines,” New York University Journal of Law and Liberty, forthcoming. 8. Duncan Kennedy, The Rise and Fall of Classical Legal Thought (Washington, D.C.: Beard Books, 1975). 9. Ibid. 10. For discussion, see Pierre Schlag, “Formalism and Realism in Ruins (Mapping the Logics of Collapse),” Iowa Law Review 95 (2010), p. 195. 11. Kennedy, “Rise and Fall.” 12. Desautels-Stein, “Market,” pp. 396–421. 13. John Locke, Second Treatise of Government (Indianapolis: Hackett, 1980). 14. Chapter Five presents Locke’s analysis of property rights. 15. Kennedy, “Three Globalizations,” p. 37. 16. Ibid., pp. 37–59. 17. For an interesting counter-narrative, see Brian Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton, N.J.: Princeton University Press, 2009). 18. Roscoe Pound, “Mechanical Jurisprudence,” Columbia Law Review 8 (1908), p. 605. 19. Desautels-Stein, “Market,” pp. 421–442. 20. Kennedy, “Three Globalizations,” p. 57. 21. Desautels-Stein, “Market,” pp. 421–442. 22. Ibid. 23. 334 U.S. 1 (1948). 24. Friedrich Hayek, Law, Legislation, and Liberty, Volume 2: The Mirage of Social Justice (Chicago: University of Chicago Press, 1976). 25. 334 U.S. at 13. 26. Ibid., p. 14. 27. Kennedy, “Three Globalizations,” pp. 25–36. 28. John Henry Schlegel, American Legal Realism and Empirical Social Science (Chapel Hill: University of North Carolina Press, 2011). 29. Ibid.

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30. Laswell, a scholar of political science, psychology, communications, and law, worked directly in Dewey’s shadow while at the University of Chicago in the 1920s. 31. Myres S. McDougal and Harold D. Lasswell, “The Identification and Appraisal of Diverse Systems of Public Order,” American Journal of International Law 53 (1959), p. 19. 32. Ibid., p. 19. 33. Ibid. 34. Ibid. 35. Ibid., pp. 20–21. 36. Ibid., p. 21. 37. Ibid., pp. 22–23. 38. Ibid., p. 24. 39. Kennedy, “Three Globalizations,” pp. 63–73. 40. 552 U.S. 491 (2008). 41. Ibid., p. 502. 42. Ibid. 43. Ibid., p. 503. 44. Ibid., p. 504. 45. Ibid., pp. 513–514. 46. My thinking about ideology follows Barbara Fields, “Slavery, Race, and Ideology in the United States of America,” New Left Review 1 (1990), p. 95. 47. Ibid., pp. 549. 48. Ibid., pp. 550. 49. Ibid., pp. 516. 50. Desautels-Stein, “Eclectics.” 51. Ibid., pp. 566–586. 52. Ibid. 53. Ibid. 54. Ibid. 55. Ibid. 56. I’m referring here to the well-known Nike slogan. 57. “The question we ask today is not whether our government is too big or too small, but whether it works.” http://www.newyorker.com/online/blogs/tny/2009/01/ourbetter-history.html#ixzz1hNSqU1QB 58. In his study of American pragmatism, The Metaphysical Club, Louis Menand quotes George Santayana as being “so extremely natural that there was no knowing what his nature was, or what to expect next.” The Metaphysical Club: A Story of Ideas in America (New York: Farrar, Straus and Giroux, 2001), p. 77. 59. In this article, we are only concerned with “eclectic pragmatism” and “experimental pragmatism.” Another, increasingly popular style of legal pragmatism is “economic pragmatism,” distinct from both neoclassical and behavioral law and economics. 60. Desautels-Stein, “Eclectics,” pp. 595–611. 61. For the purposes of this discussion, I am limiting the coverage here to Charles F. Sabel and William H. Simon, “Minimalism and Experimentalism in the Administrative State,” Georgetown Law Journal 100 (2011), p. 53, and William H. Simon, “Solving Problems vs. Claiming Rights: The Pragmatist Challenge to Legal Liberalism,” William and Mary Law Review 46 (2004), p. 127.

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62. “Experimental Pragmatism” seems like a label that is perfectly consistent with Sabel and Simon’s usage here. My suspicion is that their main complaint would be that the label is redundant since all pragmatism is experimentalist. My response there would simply be to the abundance of work done by self-identified pragmatists that so clearly does not embody the kind of experimentalism they are espousing. This may very well boil down into what is “really” pragmatism and what is not, re-playing the same debates that emerged after Peirce, Dewey, and James claimed that the term was being mis-used. My intention here is most certainly not to claim that Sunstein is actually and truly a pragmatist. It is rather that scholars like Sunstein self-identify with the term, and have enough in common with a rough and vernacular sense of pragmatism to justify calling them pragmatists as such. What is necessary, however, in the process of diluting the name “pragmatism” is to make sure that we carefully distinguish its strains, since they at least claim to be different creatures. 63. For example, Richard H. Thaler and Cass R. Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness (New Haven, Conn.: Yale University Press, 2008). 64. Sabel & Simon, “Minimalism,” pp. 78. 65. Ibid., p. 56. 66. Ibid., p. 69. 67. Ibid. 68. Ibid., p. 89. 69. Ibid., pp. 55–56. 70. Ibid., p. 62. 71. Ibid., pp. 62–63. 72. Ibid., pp. 64–65. 73. Ibid., pp. 66–69. 74. Ibid., p. 78. 75. Ibid., p. 56. 76. For example, Howard Erlanger et. al., “Is it Time for a New Legal Realism?” Wisconsin Law Review 2005 (2005), p. 335. 77. Simon, “Solving Problems.” 78. Ibid., p. 146. 79. Ibid. 80. Ibid., p. 173.

Justin Desautels-Stein University of Colorado Law School University of Colorado Boulder, Colorado 80309 United States

Contemporary Pragmatism Vol. 9, No. 2 (December 2012), 205–239 .

Editions Rodopi ©2012

Reasons as Experiments: Judgment and Justification in the “Hard Look” Jamison E. Colburn

Arbitrariness review of agency rulemakings has long set “political” influences aside as a special case worthy of special scrutiny. This essay argues that the orthodox account of arbitrariness review in this vein makes some untenable assumptions about both reviewing courts and agencies as agents. If we seek more agency responsiveness to reason rightly defined, then reviewing courts must begin devoting more (scarce) cognitive resources to the monitoring of agencies’ behaviors over time. Reviewing courts should encourage agencies to organize themselves in order to learn-by-doing. This will probably entail paying less attention to the separation of law from fact, science from politics, and judgment from justification.

Arbitrariness review of agency rulemakings has long set “political” influences aside as a special case worthy of special scrutiny. Reviews of agency “judgment” as apart from the review of legal conclusions or findings of fact normally target just such influences. This essay argues that the orthodox account of arbitrariness review in this vein makes some untenable assumptions about both reviewing courts and agencies as agents. I first argues that agencies are essentially expert systems, composited together from the spectrum of epistemic domains and professional traditions, leaving them uniquely dependent on the very “political” actors who cycle in and out and bring their “political” biases with them as they come and go. Second, I argue that reviewing courts have come to define their own tasks in arbitrariness review in such fantastically ambitious terms that no mortal could possibly discharge those tasks competently. Because of the adversarial processes by which our courts operate, the predicament is made worse as judges must construct law out of the complex statutory materials of today at the same time they must scrutinize the work of ostensibly expert organizations, all while being forbidden from trusting fully the submissions of their litigants. If a rational agency adapts its own behavior to the known biases of reviewing courts, agency learning will simply exacerbate this predicament still further. If we seek more agency responsiveness to reason rightly defined, then I argue that reviewing courts must begin devoting more (scarce) cognitive

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resources to the monitoring of agencies’ behaviors over time. In particular, reviewing courts should encourage agencies to organize themselves in order to learn-by-doing. This will probably entail paying less attention to the separation of law from fact, science from politics, and judgment from justification. Finally, I argue that those separations are at best matters of degree (and probably pure fiction) and have not served us well, all things considered. We routinely talk of “policy” and “political” influences in the making of administrative regulations. Agency judgments that include such considerations have long been a special case in administrative law. But what role do these influences really play in agency judgment? Administrative rulemakings today are subjected to external forces of many kinds, some laying emphasis on the supposedly “rational” process of summing the relevant reasons and some laying emphasis on the action’s wider public salience. And an agency’s decisionmaking process, whatever its actual character, is usually held in contrast to the more “political” moments in government where winners reward the loyal for their loyalty, say, or act out of their own venality. In this paper, I shall argue that separating these two ideal types of decision-making for purposes of judicial review of agency rulemakings is much harder than the conventional thinking assumes. Most of the empirical work on these questions is predicated on this basic misjudgment and most courts’ professed attitudes about judicial review rest upon it as well. Courts and their modes of review, I shall argue, cannot achieve a good perspective on agency decisions in rulemakings. Thus, they are poor judges of agency reasonableness, at least if by that notion we mean agencies’ responsiveness to reason rightly defined. Indeed, if what they mean to be doing is identifying and rooting out “political” decisions, court cases of review may themselves be inadequately responsive to reason, all things considered. Although the strongest form of this objection would undermine judicial review wholesale, I shall defend a qualified version motivated by a pragmatic theory of judicial competence. At their best, agencies take an iterative approach to the public problems they must address, and they organize themselves to learn-by-doing. Contemporary pragmatists have sought to improve and to make more rigorous agencies’ step-wise use of such methods. But if it is more of their “experimentalism” in the judicial review of agency rulemakings that we seek, judicial review should be conducted more mindfully of the court’s own influence and limitations. Doing so, I argue, would lead individual judges to bracket the particulars of a case and shift more of their attention to the ways in which agency behavior and public problem-solving can be integrated and thereby justified over time. John Dewey observed that democracy is “organized intelligence” and that the single criterion for judging among different models of democracy is “the degree of organization of the public which is attained.”1 Opinion is still divided over how or what Dewey conceived of as the “public,” certainly, but one thing is obviously not what Dewey thought of as public: the singular, partial, partisan, or personal motivations – undimmed by the needs or claims of others. Dewey’s

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own solution to the problematic notion of publicity was to pluralize the public, remove it from its dualistic opposition with the “private,” and to reconstruct publicness as the fuller illumination of all extant interests, motives, and concerns. Thus, Dewey’s public is public by being communicative, deliberate, and developmental.2 The essay is in four parts. Section 1 introduces judicial review and the function of standards of review therein. Section 2 raises prudential and epistemic worries about the practice of arbitrariness review in court. Section 3 introduces the “experimentalist” therapies proposed by Dorf and Sabel in 1998, and Section 4 suggests a few ways to sharpen and improve the experimentalists’ program. 1. Section 10(e) of the Administrative Procedure Act (APA) of 1946 set a broadly applicable default that still governs the judicial review of most administrative agency “action.”3 As codified, it states first that “[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”4 Following that mandate, the APA supplies six separate grounds upon which a reviewing court is empowered to “hold unlawful and set aside agency action, findings, and conclusions.”5 Finally, following the specified grounds for legal relief, the APA states that “[i]n making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.” The scope, meaning, and inter-play of these different grounds for reversal and other “review” of agency action have dominated contemporary administrative law like no other set of issues. And one form of review has done so more than the others: the reversal of agency action deemed to be “arbitrary” or unreasoned.6 Shed of its connotations of tyranny, official arbitrariness comes down to some lack of reason or justification. We may even, for the sake of argument, call it the opposite of “reasoned decisionmaking.” This section explains these standards of review as they co-evolved in our tradition with special attention to arbitrariness review and its demand for reasons and reasoned decision-making. Long before the APA, administrative agencies like the Interstate Commerce Commission pursued their goals in what we would recognize as an “adjudicative” mode. They summoned and took testimony, compiled evidence, and maintained a formal record, all in preparation for an eventual directive or permission of some kind. It was directed or issued to specific – usually named – parties on grounds particularized to them.7 And it was proceedings of this kind that generated the original doctrines of administrative law, doctrines that preceded and shaped the APA.8 Cases that predate the APA are still cited as precedent in federal court today. Indeed, the statutes, precedents and commentary that had coalesced and given form to the APA’s texts were only very gradually replaced

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by the APA itself as the locus of controlling legal authority. 9 For much of the APA’s history, indeed, its relationship to the underlying federal “common law” bearing on the very same legal issues it treats has been deeply unclear. 10 Were the APA’s texts intended to be exclusive, comprehensive, and mandatory, or rather permissive, advisory, and interstitial? Inherent judicial authority regarding jurisdiction,11 choice of remedy,12 and timing of proceedings13 long encouraged – and still permits – departure from the APA’s seemingly permanent texts. With administrative agencies engaged in general and prospective rulemaking as much as they are today, however, this ever-present threat of departure from statutory text goes to the very core of the court/agency relationship in contemporary administrative law. Before they appeared in judicial review of agency action, different “standards” of review had evolved to reflect our popular sovereignty’s peculiar institutional legacy. The vertical and horizontal boundaries of our hierarchical court systems, our separate “branches,” and our Seventh Amendment promoted their development. Within the judicial hierarchy, the principal distinction that emerged was between the review of “findings of fact” and the review of “conclusions of law.” This fact/law dichotomy first grew out of our Constitution’s entrenchment of juries and the jury’s common law authority in the courts of law.14 Federal appellate courts eventually fashioned two standards of review: the “de novo” standard for questions of law and the “substantial evidence” and “clearly erroneous” standard for questions of fact. Where the former was akin to a complete slate-cleaning (as its Latin origins suggest), the latter was more constrained by and bound to the original decision. Significantly, the standard of review for jury findings has long imagined a “rational” or “reasonable” person who must hear and weigh competing evidentiary claims.15 Thus, the “clearly erroneous” label has been interpreted to require a presumption of correctness, 16 a refusal to “duplicate” the role of the original decision-maker,17 or just simply a kind of “deference” to the fact-finder’s better proximity in such matters than that of a reviewing court.18 Each formulation varies subtly from the others. None results in an affirmance, however, if “no reasonable person” could have drawn the conclusion(s) from the evidence under review. Indeed, the courts regularly expound on the standard in ways that emphasize unmistakably that persons are making the findings of fact. Persons, however, are notoriously motivated – sometimes consciously, sometimes unconsciously – and those motivations are notoriously opaque. Personal motivations are the antithesis of reason, whether it is because they stem from bias or something worse. Not all of them are nefarious, of course, but a “bias” is by definition a departure from or lack of reason. Courts have long focused here, if only tacitly, in reviewing decisions within the judicial system. Thus, for example, while the standard supposedly “does not change,” “the likelihood that the appellate court will rely on the presumption [or correctness] tends to increase when trial judges have lived with the controversy for weeks or months instead of just a few hours.”19 Bias or

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motivated thinking in this context – the opposite of reason – is always something lurking just beneath the surface of any given reason(s). Finally, a third standard arose to review the inevitable exercises of judgment in the trial and hearing of an entire case or controversy. Such “supervision of litigation” decisions admit of more than one correct answer and often involve an indeterminate range of considerations. Thus, the standard became known as the “abuse of discretion” standard.20 While the standard obviously assumes two very different properties – that of having discretion and that of exceeding one’s discretion – it has defied precise explication.21 One court recently offered that an abuse of discretion occurs “(1) when a relevant factor that should have been given significant weight is not considered; (2) when an irrelevant or improper factor is considered and given significant weight; and (3) when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment.”22 The abuse of discretion standard so described is about identifying the relevant “factors” of choice and assigning the right weight or force to each in the decision(s) made.23 How might we organize these different standards? “Deference” to lower courts first arose as to findings of fact and exercises of discretion. 24 Deference like this traditionally meant that reviewing courts adopted a so-called presumption of validity, i.e., that they refused to reverse absent a substantial reason for doing so. But the relative strength of this presumption was never settled, nor was the minimum necessary strength of the reasons that could rebut it.25 Indeed, well before the APA entrenched it, courts had settled on a consensus that findings of fact, both by lower courts and by administrative agencies, need only be supported by “substantial evidence,” not all of it.26 By the 1930s, an initial formulation – requiring but a “scintilla” of supporting evidence – had been rejected but not replaced. “Substantial” evidence was more than a scintilla, less than everything in the record, but otherwise equivocal in quantity. 27 By the time of the APA’s enactment, reviewing courts knew that they could not simply presume the facts to support an agency action under review the same way they could in assessing legislative action.28 It was regarded as a burden to support an agency action with substantial evidence.29 The more Congress used the phrase ‘substantial evidence’ in its statutes concerning the review of administrative agency action or the judgments of specialized courts, 30 the more routine this supposedly deferential form of review grew.31 Following its codification in the APA, reviewing courts came to regard the substantial evidence standard as the default for fact review even as its precise meaning continued to evade capture. 32 Throughout, conduct of a substantial evidence review remained linked to agency proceedings with a defined record. If an agency had elected not to proceed “on the record,” review of that agency’s action in search of substantial evidence remained out of order unless specifically required by statute. 33 The default requirements for proceedings on the record (the APA’s Sections 7 and 8) are triggered only by enabling statutes that require the agency to proceed by “hearing on the record.”34 In practice, without deliberately taking evidence into a

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record sorted as such, an agency is unlikely to meet the expectations of substantial evidence review. The bare notion of evidence, after all, taps into a complex common law tradition wherein proffered information must be prepared and ordered logically, its relevance weighed, and its inclusion or exclusion from deliberations based upon its expected contributory value. 35 Substantial evidence assumes that what is being scrutinized is probative knowledge instead of noise. 36 Challenged propositions must be proven one by one in that tradition. The legal case itself is what decomposes matters to some number of elemental disputes of fact – some number of propositions. Judging in that vein supposedly can single out the motivated or biased. Administrative law’s combining of traditions has led to some significant doubt about how “substantial evidence” review compares to arbitrariness review of factual findings, though.37 Is one less deferential than the other? One court that squarely confronted the practical difference(s) between substantial evidence review and Section 10(e)’s arbitrariness standard applicable to issues of fact in “off-the-record” proceedings concluded that there was no substantive difference between the two standards.38 The only difference, then-judge Scalia held, is that the factual support for agency action under the APA’s “substantial evidence” review must “be found within the record of closed-record proceedings to which it exclusively applies.”39 Assuming this is correct, it can still make a big practical difference. The APA’s requirement that the court “review the whole record or those parts of it cited by a party” invites the agency’s opponent(s) to submit, and to argue the probative value of, evidence contrary to the agency’s findings. The judicial code affords some flexibility as to what exactly must be filed with the court in response to a petition for review. 40 But review that must rely exclusively upon “record evidence” is more confined than one that permits the use of information from beyond the proceedings to justify or to question the challenged action. It also undoubtedly empowers some within the agency and not others.41 Finally, as the Supreme Court has made clear several times over, agencies are not to be held to procedural requirements like keeping a record unless the governing law – fairly interpreted – levies them.42 Agencies are free to proceed “informally” and without a “closed” record unless a statute or their own rules require it, not least because the closed record proceedings also allocate a burden of proof to the “proponent” of the agency’s action.43 Thus, a converse holds as well. In instances of “informal,” open-record proceedings, agency action is to be reviewed according to the ‘record’ – such as it may be – actually accumulated and filed by the agency.44 A reviewing court convinced that it must serve some kind of checking or other “supervisory” function45 may expect discrete and identifiable “findings” of fact. And this role-derived expectation attaches regardless of agency action-type. That court will seek to scrutinize the agency’s explanation of its policy-making choices. And it will only defer to the agency’s interpretations of law when the doctrines of deference thereon – doctrines like Chevron46 and its progeny –

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require or permit that deference. This kind of probing examination of agency action has cemented a synthetic tradition in place that we might call the standard deduction. It is standard because it holds across contexts in the administrative process, regardless of statute, agency, or action-type. And it is deductive in logical form, at least in part. This standard deduction has two parts: (1) Because Congress, in delegating the authority it did to the agency, was relying upon that agency’s greater knowledge, expertise, field of view, span of control, etc., no reviewing court is free simply to substitute its faculties of perception, inference, judgment, etc., for that of the agency; (2) provided that the agency enables a reviewing court to discharge its checking function, whether by the filing of a “record,” the issuance of a satisfactory explanation, and/or the announcement of discrete legal conclusions, respecting Congress’s choice to afford those affected their right(s) to judicial review.47 While this standard deduction has an air of invincibility today, it is open to several doubts. Consider how it has worked in practice. Reviewing courts have obviously interpreted their checking function quite variably. Moreover, the fact/law dichotomy is only as good as the distinction on which it rests. Clearly it does not exhaust what a reviewing court might find fault with in any given agency “action.” The APA commands a reviewing court to “hold unlawful and set aside” three distinct things: “agency action, findings, and conclusions” where any of them is “found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”48 Now, as Dewey’s work long emphasized, dualisms like law and fact purport to exclude a middle that almost certainly exists in the world as we experience it. Indeed, factual and legal issues rarely fit into neatly separated compartments in litigated cases, i.e., the cases the opponents are all at least somewhat confident they can win. Most cases that are close enough to sustain themselves in litigation present issues that are mixtures of law and fact. Indeed, the Supreme Court recognized this long ago as a reason to defer as much to agencies’ legal conclusions as to their findings of fact.49 Mixed questions of law and fact arise often enough, but even where law and fact are readily distinguished there is usually some residue left over within the agency’s “action” for a reviewing court to scrutinize. Action has always implied a totality that is broader in scope than any particular intentional state. Philosophers of action must explain intention, consequence, knowledge, motive, and the like.50 Action in this context expands what may be scrutinized. To take an all too familiar example, where the governing law posits a range of goals or priorities for the agency to sort, law, fact, and judgment can intertwine with one another so as to necessitate review of an overall explanation that falls under no particularly defined standard of review.51 This is why the “hard look” standard

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of review has always aimed for something beyond the traditional law/fact dichotomy. But its exact aim has shifted over time. As is often said, the concern is the agency’s reasons and, more specifically, some sort of assurance that the agency action under review is the result of “reasoned” decision-making.52 Reasons for action have turned out to be a troubling focus in the court-agency relationship, though. The trouble is how little we can say about reasons for agency action which does not require, for its compatibility with our Constitution, that we empty from the notion of reasons for action all that makes the notion demonstrative, explanatory, or communicative. Reasons for agency action have a surprisingly complicated structure which judges engaged in judicial review of agency action probably cannot effectively scrutinize or improve. The first cases from the D.C. Circuit to mention a “hard look” mentioned it as what the reviewing court expected the agency to take to the facts and issues before it. 53 Judge Leventhal, its original proponent, said that the standard “calls for insistence that the agency articulate with reasonable clarity its reasons for decision, and identify the significance of the crucial facts, a course that tends to assure that the agency’s policies effectuate general standards applied without unreasonable discrimination.”54 Shorn of its embroidery, Leventhal’s hard look doctrine demanded perspicuity of the agency and, above all, a willingness to hear the arguments and to weigh the options presented by the agency’s opponents. What we are entitled to at all events is a careful identification by the Secretary, when his proposed standards are challenged, of the reasons why he chooses to follow one course rather than another. Where that choice purports to be based on the existence of certain determinable fact, the Secretary must, in form as well as substance, find those facts from evidence in the record. By the same token, when the Secretary is obliged to make policy judgments where no factual certainties exist or where facts alone do not provide the answer, he should so state and go on to identify the considerations he found persuasive. 55 For a time, the accountability Leventhal envisioned here between agency and reviewing court seemed productive and healthy.56 But it was short-lived. The more insistent the courts grew that agencies offer perspicuous explanations for their actions, the more the (motivated) litigants bringing their challenges learned to find gaps or other weaknesses in agencies’ given reasons. Motivations and biases are, after all, equally a property of litigants who go to court as they are of agency decision-makers. Moreover, the formative precedents on this hard look review examined law, fact, and judgment as they intertwined in open- and closed-record proceedings alike. 57 Consequently, agency actions eventually became so indirectly “proceduralized” by the D.C. Circuit’s hard look that the Supreme Court intervened and not-so-politely admonished the lower federal courts that “administrative agencies should be free to fashion their own rules of

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procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.”58 The more complex and technical the issues grew, the less confident the judges themselves felt in their own competence to assess an agency’s reasons from a bare record of that agency’s proceedings.59 The more frequently complex factual records came to court as the basis for some agency’s rule, the more uneven the review became. 60 Section 2 uses one recent example of arbitrariness review in this tradition to illustrate its paradoxical character. 2. In theory, agencies can organize and operate to make much fuller use of domain experts than can the courts. This is the comparative advantage of bureaucracy over less rational institutional forms.61 In practice, however, they can do so – consistent with the standard deduction – only if they can also explain their methods and choices to the reviewing court’s satisfaction. When the Supreme Court finally defined its version of arbitrariness review, it began with a restatement of the standard deduction.62 And then it opined that an agency rule would be arbitrary and capricious if the agency relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.63 This formula in State Farm has since taken over the mantle of the “hard look.”64 It presupposes at least the following: (1) that agency judgment consists in identifying and (properly) weighting the discrete “factors” of choice; and (2) that the agency is under a duty to substantiate a factual basis for any judgment(s) that can accord with any express justification(s) sufficiently well for a reviewing court to endorse. Each of these commitments is substantive and problematic. Let us take the second one first. At issue in State Farm was a National Highway Traffic Safety Administration’s (NHTSA) standard on automobile passenger restraints under the Automobile Safety Act – an agency action Congress supposedly required be tested against a “substantial evidence” standard.65 In a proviso that has inexplicably gone missing ever since, the State Farm Court also held that “Congress required a record of the rulemaking proceedings to be compiled and submitted to a reviewing court ... and intended that agency findings under the Act would be supported by ‘substantial evidence on the record considered as a whole.’”66 And such a requirement followed (if at all) from NHTSA’s unique enabling statute – not the APA. Much of what animated the Court’s actual scrutiny in State Farm was the extensive factual record NHTSA had amassed to

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support its challenged action.67 Thus, the scope of State Farm’s arbitrariness review stemmed – ironically enough – from a “substantial evidence” agency proceeding.68 Clearly, NHTSA’s “burden of explaining”69 its course of action in the convoluted history of that particular standard-setting was heightened by the presence of so much record evidence and documented agency indecision. 70 And this nexus in State Farm was probably uniquely demonstrative to agency lawyers: the more the agency documented the more it had to explain, especially because so much of what was being explained was the range of expert opinion.71 The economists’ counsel, when combined with the crash test experts’ counsel, may have been easily recordable. But they were seamless neither in the direction nor in the degree of action for which they served as counsel. The prevailing process norms in rulemakings governed by APA Section 4 demand that agencies put out for public scrutiny whatever information, data or other evidence they believe supports their proposed rule. 72 This, in turn, typically elicits responsive submissions and commentary. 73 But what is responsive is heavily influenced by the initial framing of the rulemaking proposal. Without any bars on admissibility (as the rules of evidence empower trial judges to erect, especially as to expert opinion74), the records from this process can be rather hard to conceptualize. What factual predicate could possibly be amassed and transmitted to justify a rule that embodies a compromise between two mutually competitive projects like risk aversion and wealth maximization? Normally, different objectives like this will involve (at least) two different kinds of domain experts, demanding that the agency’s precise mediation between the two be substantiated factually. 75 Without knowing what the standard(s) of proof should be for such intermediation, the “records” being compiled will be ad hoc. Furthermore, the non-expert judges reviewing such records, any constituent findings, and/or any attendant explanations, are in a precarious position. Whatever biases may or may not affect agency personnel, without a formal record, reviewing courts are hardly in position to establish it after the fact. And though they cannot impose the judicial system’s traditions of evidentiary proof, using any other identifiable standard by which to assess an agency’s factual work would arguably encroach upon the constitutional role of the legislative and/or executive branches. Deliberately creating a standard could seem either like making law or assuming the President’s duty to “take care that the laws be faithfully executed.”76 Consider a recent example and how it problematizes both of State Farm’s presuppositions in the review of agency reasoning. In Massachusetts v. EPA, the Supreme Court reviewed an agency action having both tremendous political stakes and notoriety and unsurpassed factual complexities. EPA was petitioned to reach a finding under Clean Air Act § 202(a)(1) that “greenhouse gas emissions from new motor vehicles” are “air pollutants” the emission of which “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”77 The agency rejected the petition and review was sought. In a 5–4 decision most regarded as a pointed rejection of the

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Administration’s political involvement in EPA’s decision, the Court held that the greenhouse gas emissions complained of could not but be “air pollutants” within the meaning of the Act and that the only factual determination left for the agency was whether the emissions “cause or contribute to” endangerment of the American public.78 The Act’s definition of “air pollutant” is designedly broad.79 And, as the majority implied with its review of various institutions’ responses to the mounting (scientific) evidence proving global climate disruption, 80 assuming greenhouse gases are “pollution,” they are probably the worst pollution problem we will ever face. Nowhere in the informal “record” compiled, though, did EPA ever assert or even imply anything to the contrary.81 The agency never said that greenhouse gases do not or cannot endanger public health or welfare. The agency’s conclusion was that Congress had not adequately “authorize[d] regulation under the [Clean Air Act] to address global climate change.”82 All of EPA’s reasons for denying the petition were to that effect, chief among them the agency’s interpretation of various other statutes bearing on global climate disruption (none of which empowered EPA to regulate emissions) and the agency’s familiarity with the Clean Air Act’s legislative history.83 Taking its cue from the Supreme Court itself, EPA compared the scale and scope of the problem of global climate disruption against the agency’s authority and decided that the Act’s general grant of authority on this problem of unprecedented scope – which Congress had several times considered but for which it had never delegated regulatory authority expressly – was insufficient.84 EPA rejected a rulemaking petition, that is, it did not “find” that “greenhouse gases” are not “air pollutants.”85 In its own words, EPA’s “action” was not a finding regarding the polluting character of greenhouse gas emissions.86 The agency explicitly avoided making such a finding,87 noting repeatedly that although the statute mandated an up-or-down decision on the petitioned compounds as “air pollutants” under the Act, it contained nothing like a deadline for that particular decision/action.88 The Act did not bind EPA to move within any certain interval of time. Thus, in EPA’s view, while it continued to consider the problem (as would everyone else, including Congress), it could hold off from regulating what amounted to a minute fraction of that problem. Confronted with the agency’s statement of reasons and an apparent sense that the President’s politics had motivated EPA, a majority of the Court held that EPA could not rightly consider the causal redundancy of greenhouse gas-forced global warming in this way. 89 EPA’s assertion that emissions of these gases around the planet were going to endanger public health and welfare regardless of future U.S. auto emissions was highlighted by the majority as an unauthorized reason for denying the petition.90 It was, in State Farm’s formula, a “factor[] which Congress had not intended it to consider.”91 But how could this be so? How can the fact – or at least EPA’s supposed finding – that global warming is causally over-determined be completely excluded from EPA’s decision whether to regulate emissions from (certain) U.S. sources as an “endangerment”? In our

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legal traditions, additional causes are always relevant and never more so than when the additional causes would themselves be sufficient to bring about the harms in question.92 We care about causes because we care about what links behavior to its consequences.93 Things would have to turn upside down for an agency of ours to ignore completely a causal redundancy it noticed in greenhouse gas emissions the planet over. At the very least, the statute should have been explicit to that effect, and it was not. Massachusetts arguably highlights a more general failing of the Court’s in applying State Farm. How could the supposed exclusion of EPA’s reasons found by the Massachusetts majority have been viewed as some kind of “clear statutory command?”94 Could the statute really have meant EPA to ignore the quantities of the pollution as causes of the pollution problem? 95 From all indications in prior Clean Air Act endangerment precedents, EPA’s disregard of a causation failure like the one it identified would itself have been regarded as “arbitrary.”96 The paradox is obvious and familiar to lawyers: the statutory constraints supposedly structuring agency judgments of this kind are so plastic that they are manipulable. Modern statutes are hardly constraints at all in the kinds of decisional actions so often challenged in arbitrariness review. Their strictures amount to a check on agency carelessness more than they do a check on lawlessness. The Supreme Court has repeatedly said as much about the statutes that create these contexts – refusing to scrutinize them for anything like a single or uniquely correct meaning when the issues raised are both specific and programmatic.97 State Farm’s very notion of agency choice consisting in some isolation and proper weighting of choice “factors” depends on the opposite presumption, though. It naïvely presumes a discernible set and, by implication, the exclusion of non-members. But sets that are both tractable and exact are rare unless they are stipulated in explicit language. Indeed, sets are more often paradoxical.98 Without some ground on which to stand to find and weigh choice factors as the members of a State Farm set, the actors are left with nothing but space. Take the Clean Air Act’s proviso that pollutants need only “contribute to”99 the pollution problems at issue for EPA to make an endangerment finding. Put aside the dissent’s argument that the phrase is “ambiguous” in the sense that the Court had previously held entitled EPA’s interpretation to judicial deference.100 What ought to be a relevant contribution where air pollution is concerned? Contributions like this are themselves paradoxical: what is enough to be relevant? It cannot be enough to say anything no matter how negligible, for that just negates the significance of EPA’s decision and, along with it, whatever sort of functionality or accountability we seek of agencies like EPA. So where is the threshold? The troubles compound when we remember that the greenhouse effect threatens us environmentally in a way unlike any other “pollution” hazard to which the Clean Air Act has been applied. Assuming no particular quantitative threshold is more easily inferred from the Act than any other, how should it be decided? New motor vehicle emissions in the United States over the coming

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decades will be, under any reasonable estimate, no more than a tiny fraction of the causal forcing behind the greenhouse effect. We could call this our delegation problem: if statutes are going to be so general as to accommodate the unforeseen, when the unforeseen unfolds, it may well challenge all of our original suppositions – leaving the administrators of these statutes in the unenviable position of having to contort and/or uncontort them to find a workable fit. Contemporary statutes and their interpretation add more than just a layer of uncertainty to such problems in practical reason. The delegation problem is pervasive. Such statutes make State Farm’s notion of a choice “factor” into a drag on practical reason when agencies confront the unforeseen by compounding questions of constitutional role and linguistic convention/logic with questions of causality, consequence, and epistemic competence. Identifying choice factors from statutes at decisional junctures like the one at issue in Massachusetts – which is to say, highly specified junctures where subtle variations can be decisive – normally presents the very kinds of hard questions that judges work hardest to avoid. Their ready alternative is the mere suggestion that the agency has considered something it should not have or failed adequately to consider that which it must. The ready alternative is the implication that an expert has fallen prey to motivated or biased reasoning – like some jury or errant judge. When courts wish to forbid, permit, or require an agency’s attention to some “consideration,” they label it a “factor” within the State Farm formula for reviewing agency judgment.101 These “factors” can be derived from statutory text,102 legislative history,103 precedent,104 or agency practice.105 Just as the hard look doctrine was emerging, several cases involving the setting of environmental quality standards by agencies like OSHA and EPA were litigated where statutory factors became the principal question. Whether the agency was permitted, forbidden, or required to consider the supposed “costs” of environmental quality was a common dispute. Because statutes so rarely address that question clearly, though, reviewing courts have been left to interpret statutory “silences,” legislative history and other similarly under-determinative sources.106 With so little expressed about what may, must, or must not be a relevant consideration in an agency’s reason balancing, State Farm reviews that imply political biasing need never differentiate effective coordination of an administration’s strategy or priorities from, for example, meddling on behalf of a political client. Like the scholars who have opined about proper versus improper “political” influences in this context, reviewing courts need never get any more specific about the distinction, if there is one. There may be no Archimedean search for State Farm’s factors, but combining the trappings of litigation with the background levels of uncertainty inherent in statutory analysis – to say nothing of the amateur evaluation of actual science – raises serious epistemic worries.107 Agencies are supposed to aggregate different human capacities to achieve that which individual generalists

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cannot.108 They are supposed to be “expert systems,” so to speak.109 This is hard to reconcile with the idea of a generalist judge’s reviewing such an organization’s work. Whether an “explanation runs counter to the evidence” turns on how one can square the evidence with the explanation(s) offered. Attitudinal influences surely play a part.110 More perversely, though, agencies, their explanations, and the evidence they gather to justify their judgments are all viewed in the adversarial process by which our courts operate as partisan.111 They are not to be trusted fully when they are in court. It is the judge’s constitutional duty to take this attitude, the judge’s duty to be “fair-minded” about the facts until the time for his or her conclusions. Yet these decisions are reached by the same persons who must at the same time make sense of a (likely complicated) statute. Combining the two tasks is compounding the challenge of the office.112 Forcing one decision-maker to construe the law, to review the findings and judgments of a more or less expert organization, and to interpret partisan arguments in order to do it all is expecting a lot.113 The well-known biases of all reasoners would be daunting to any but the most confident of judges.114 These failures of reason in the courts may be of broader significance in themselves for the simple reason that agency lawyers are aware of them. For example, is the judge inclined to view the statute as picking out genuine kinds through some referential history115 or is s/he inclined to view the statute in a more cognitivist vein whereby the legislators’ collective intentions matter most?116 Are these inclinations strong enough to persist from case to case? If not, that all by itself may undermine the normativity of whatever “factors” for agency judgment hard look review can select. After all, if judges have no robust inclinations on this point, they may be moved by reasons that end up being mutually inconsistent in short order. Agencies making rules must prepare to deal with “the judiciary,” a fictional whole standing in for what is, in truth, a (somewhat) diverse population of individuals.117 But if agency lawyers know that the “arguments” can be changed-up whatever the selected judges’ past judgments, it is hard to find anything principled in the statutory interpretations of such a system. Given how formative legacy precedents can be,118 it is arguably the agency lawyer’s duty to craft winning arguments – not to communicate forthrightly. Whatever plausible “factors” emerge over time in that nexus, in short, will obviously skew away from what a randomized, nonsequential case ordering would create.119 They will be, in essence, accidental. Finally, it seems wrong to assess real expertise as do reviewing courts in this doctrine. It makes the double mistake of viewing agency-gathered evidence and expert advice as too weak and too strong at the same time. In court, every factual dispute has at least “two sides” that must be allowed their hearing. But this oblique approach has less to do with truth or reason than with orthodox notions of fairness and procedural justice. 120 Fact finding in the legal process conceptualizes information in this way. In the world-at-large, we know to be wary of the distorting effects of particulars, though. Facts are rarely so authorita-

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tive as the judicial process makes them, of course. So while testing ostensible facts may be the essence of science and modern probability, doing so in the ways that litigation venues allow is deeply problematic. Besides the “anchoring” and “availability” problems inherent in any case-by-case analysis, a professionalized attitude of fairness can find its way into virtually any cognitive space. Yet fairness, as David Estlund has argued, is an occasional value. “It can sometimes seem as if everything should be fair.”121 Fairness’s hegemony probably has less to do with our actual values, though, than with the accidents of our language. Many things that are not fair are not unfair either. And holding a proposition of fact in abeyance in order to entertain some proposed alternative can only be virtuous, truth-tracking, or reasonable if the judge is qualified to do so. When scientists do so, it is within the confines of their own epistemic domain and at the behest of someone of real standing who has mounted a defined and plausible challenge. The “implausible” of which State Farm spoke is, we may reasonably worry, precisely the manner of attack that cranks have taken since the emergence of modern science.122 And the implausible has too often become the truth to take this sitting down. “If we believed that when we consulted our neurologists or our aircraft engineers in the real world there was only a 50/50 chance that they would provide accurate advice, we would not call them experts at all, nor would we pay them handsomely to cure our diseases and build our planes.”123 Of course, litigation delivers the “expertise” courts must weigh when reviewing agency action in precisely this form. If it is an expert’s words that undergird an agency’s judgment, what is the likelihood that a reviewing court will simply misunderstand those words? After all, “what is plain to those within a specialized linguistic community may be obscure to the man or woman on the street, and the same word or phrase may mean different things to different linguistic communities.”124 There is at least some propensity of generalist judges simply to misunderstand the expert’s counsel to an agency, probably exacerbated by the ad hoc nature of the “records” conveying that counsel and the agency’s reactions to the particular litigation. Finally, a court that uses State Farm as it was used in Massachusetts – surfacing and rejecting what it thought were illicit “political” influences – creates precedent to do so in the future, whatever the direction or degree of inclinations on future courts. Try as they have to find an approach that is both content-independent and appropriate to Article III judging, reviewing courts mostly know that their charge in arbitrariness review of agency rulemaking is fundamentally askew.125 Judges are charged with doing that for which they have no comparative institutional advantage and too little absolute competence. 3. Section 3 argued that State Farm must assume agency choice takes a form it does not in fact take and that the hard look as State Farm formulated it demands

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too much of reviewing courts. The law can forbid, permit, or require conduct but statutes today are characteristically vague as to what, if anything, they actually accomplish to that end. Statutes like those that gave us the “standard deduction” set out in Section 1 normally direct an agency to establish the norms that forbid, permit, or require conduct and to do so in pursuit of some list of goals or priorities. Agencies are institutionally complex, though, and they use a variety of tools to coordinate the inter-operation of their many parts. A common tool is the rule issued by agency superiors which directs subordinates how to specify the rights and duties of a regulated party. The question arises how such rules figure into the reasoning of “the agency” – how the rules interact with otherwise good and sufficient reason(s) for agency action. 126 This section argues that judges are in no position to answer this question with much precision and that the hard look therefore presumes reviewing courts are better off epistemically than they really are. For, if courts cannot recognize and differentiate the uses of authority by and within administrative agencies, how agencies actually respond to reason as opposed to something else will remain obscured no matter how hard the look. The conventional wisdom is that an agency’s norms are binding on the agency itself until repealed.127 Agency norms that bind in this way exclude or defeat reasons, so to speak, and supply the basis for some agency judgment that would otherwise be inadequately justified. To say the agency decided as it did in compliance with its norms is to say that the applicable norm was the agency’s justification, its reason for action. This is as conventional in contemporary legal philosophy, e.g., the work of Joseph Raz and other positivists, 128 as it is in established doctrines of administrative law. 129 To follow a norm is to ignore any countervailing reasons for action and that is precisely why affected parties may seek review of the agency norm itself in advance of its application to them.130 One complication in contemporary administrative law is the APA’s definition of “rule,” which includes every agency “statement” that is “of future effect” and which is “designed to implement, interpret, or prescribe law or policy.”131 This definition is, in the context of mostly bureaucratic organizations, extraordinarily broad. Agencies issue “rules” in this sense constantly; it is how they function as coherent organizations. Thus, the binding force of agency rules in all their variability and diversity is a matter of some controversy. While all agree that agency rules can have binding force only if Congress authorizes the promulgation of such rules,132 the coercive force of agency authority can vest ostensibly nonbinding “internal” rules with this property indirectly.133 Many agency “policies” turn out, because of the way the agency is organized, to exclude or defeat reasons just as a binding norm would. And the necessary and sufficient aspects of statutes that will authorize agencies to make practically binding norms like this remain deeply unclear 134 more than a century after the problem was recognized.135 In their 1998 account of “democratic experimentalism,” Dorf and Sabel argued that judicial review of means/ends rationality had become overelaborated in doctrine and verbiage and that it has always been about basic

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means-ends analysis. “Stripped of the confounding complexity of means-ends scrutiny in its familiar forms, an experimentalist review moves in the direction of an express jurisprudence of excluded or impermissible reasons.”136 Dorf and Sabel argued that this jurisprudence could replace the dichotomy of today wherein courts oscillate between “extremes of deference and intrusion.”137 But their notion of reasons – much like the Supreme Court’s notion of factors for decision – was vague and perhaps not strong enough to improve agency rationality through judicial review. Dorf and Sabel imagine reviewing courts as trying in earnest to “smoke out” the impermissible reasons – the biases and political motivations, etc. – lying within agency actions. The notion is attractive as many have adopted this view of the hard look and its power to unearth prohibited or otherwise defective reasons. But the nature of agency norms and organization render this more a control on agency carelessness than on the formation of illicit motives by/within administrative agencies. Let us take as an example the Federal Aviation Administration’s 47-year prohibition on commercial pilots flying past their 60th birthday.138 In 1959, the FAA adopted by notice and comment what it termed a safety rule prohibiting regulated air carriers from employing pilots older than 59. 139 The ensuing challenges engulfed FAA for virtually the entire half-century of that rule’s validity. The first challenges were that the rule was an arbitrary cutoff and that its application was the denial of an individuated hearing to which every licensed pilot should be entitled.140 Soon thereafter, pilots combined challenges to the rule itself with challenges to their own exemption denials. 141 Eventually, pilots were arguing not only that the rule lacked the required means/ends justification but that it had been adopted as a favor to the airline industry as an indirect control on labor costs. 142 Each of the successive challenges was rejected by FAA despite evidence that the rule was unjustified. As nine courts of appeal heard and rejected arbitrariness claims, FAA’s reasoning slowly came into focus. FAA had adopted the rule, it said, because the progressive degenerative effects of aging make it increasingly likely that aging pilots will experience some kind of sudden incapacity that is unpredictable in individuals but entirely too predictable across the population.143 Barring some kind of breakthrough that would improve medicine’s ability to predict these events in individuals, thus, FAA held that the rule and the risk put the burden of proof on the individual pilot.144 And that burden was practically insurmountable, not least because no U.S. pilots were flying large planes commercially past 59.145 The agency even adopted a policy of rejecting all exemptions unless and until an applicant presented the medical breakthrough FAA said was needed.146 Notice that the practical reasoning behind the Age 60 rule in 1959 differed markedly from that which carried it through successive arbitrariness reviews. While there never was any medical significance to age 60 as such, the essential issue was that no medically significant threshold could (or can) be set to correspond to the risks FAA was regulating. There was, in some sense, a deficient justification for the agency’s actions. But notice, too, that in challenge

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after challenge, the courts never did “smoke out” any impermissible reason for maintaining the rule – and neither did they dispel the doubt that FAA was acting for bad reasons.147 Clearly if the rule were a favor to the airlines, that would be a bad reason.148 But what if the agency was simply responding to the biased or motivated reasoning of those around it? This is where arbitrariness review as traditionally conceived fails us. It offers no conception of the agency as an actor. “Agent specific” reasons are not necessarily bad reasons, but who are the relevant agents in an agency? Standards of judicial review have inevitably boiled down to whether a “reasonable person” could think what the subject thinks. Agencies are a composite of different kinds of people, though, even while the agency as a whole can have interests and concerns unto itself. So what if FAA retained its rule because hard look scrutiny and State Farm would have made any action changing the rule into a struggle the agency preferred to avoid? Justifying any alternative threshold to a reviewing court’s satisfaction in light of the text of the Federal Aviation Act (requiring FAA to regulate “in the interest of safety”), State Farm, and the available information on the nature of aging would have been difficult at least.149 Confronting these “transitional” risks, perhaps FAA decided that exempting experienced/elderly pilots one-by-one would also be a mistake. (Imagine if an FAA-exempted pilot caused an aviation disaster.) A role-guided hard look of the sort grounded in our standard deduction perhaps represented motivated, biased reasoning to FAA. To FAA, safety in the aviation system is more important than being fair to individual pilots or even the appearance of fairness to all pilots. The role-defining standard deduction introduced in Section 1 even pushed one court to preach in dicta that “it is obvious that the FAA must continue and must enhance its efforts to accommodate [the pilots’] points of view” and that “[o]bviously, there is a great body of opinion that the time has come to move on.”150 Points of view? To an agency, all this communicates is the court’s sympathy for the pilots that almost – not quite, but almost – motivated the court to hold for them. So if FAA thought that trying to improve the Age 60 rule was too risky, could its inaction have been for good and sufficient reasons? How exact would FAA’s tradeoffs have to be to satisfy a State Farm review? Would it have to quantify what it was balancing or would some intuitive weighting suffice? What in the law could authorize FAA to act so strategically? If there is no law authorizing such reasoning, does it represent bias or some other failure of reason? How would the individual pilots’ fights to fly as long as possible151 be factored into a hard look review of FAA’s choice either to keep the rule or to reject all exemption petitions? FAA could reasonably presume that any choice limiting a piloting career (if 65, why not 67?) would be litigated repeatedly and zealously. But could a reviewing court count that as a “factor” for the agency’s decision? And how little consideration of the individual petitions would have been too little? Finding defective reasoning in the many opportunities presented – or even proving the acceptability of FAA’s reasoning – could only have come from

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a better conception of reasons for agency action. Without an adequate account of the roles that different people should play in an administrative agency, reviewing courts have to reinvent rational or reasonable agency action over and over.152 Yet they have no way of knowing who should contribute what to agency reasoning, when, or how – while at the same time they must ignore their own biasing effects on agencies as agents. This is our problem. The concept of a reason is itself relational. “Basic reason statements of the form ‘A has a reason to Φ’ or ‘here is a reason for A to Φ’ indicate a relation holding between some agent A and some act Φ (e.g., an action, belief, feeling) – a reason is a reason for someone to or for something.”153 Our problem is grounded in how little we have actually decided about agency autonomy – how much of it we want, when, where, to what effect, etc. This is at least in part because agencies are so diverse (or at least non-standard), dynamic, and active. But it is also because of our conflicted attitudes about their roles in society and the legitimacy of reviewing courts in a democratic order. Section 4 finishes by suggesting a more productive form of arbitrariness review given our overall predicament. 4. The standard deduction and the judicial duty to be fair to litigants mostly wipe the arbitrariness slate clean, iteration to iteration. 154 In the two examples examined, these two have exerted subtle systemic influences, though. How did the Age 60 rule’s paradoxical justification – hinging on the non-detectability of age-related deterioration in particular pilots – survive repeatedly and without experiment for so long? State Farm hard look review allowed the courts to ignore FAA’s longer-term failings and, therefore, not to prompt any real agency learning. Without scrutinizing the choices keeping FAA ignorant, each judicial case was left to its own accidents, so to speak. Powerless to change how the agency organized itself or who played what role therein, the courts could not but focus on the “records” brought to them – a matter of some accident across the range of cases.155 Now Congress eventually increased the mandatory pilot retirement age to 65.156 But was that truly corrective action? Presumably a set of pilots could fly longer (although that set ended up being slightly deformed by the process157). But society as a whole simply kicked the problem down the road a little and learned virtually nothing for its troubles. The agency’s reasons were never public in Dewey’s sense because they were not communicative, deliberate, or developmental. An agency confronting the risk of aging in pilots and the uncertainty of pilot failure should want to reduce both. It should want to learn whatever can be learned about both the risks of age-related sudden incapacitation and about the uncertainty of individual pilot failures. According to an orthodox distinction, risk is variability that can be expressed in a probability distribution whereas uncertainty is not so quantifiable.158 On this view, to change your uncertainty into risk you must learn enough to gather the actuarial knowledge that lay

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behind risk expressions as opposed to the paralyzing uncertainty of first encounters.159 As older pilots argued to FAA time and again, the population of pilots who reached age 65 was actuarially different from the population of all pilots. These were the most experienced people who had never been disqualified, whether by routine medical testing or the hazards of flight. Forcing their retirements may not have been rational at all. Airlines would hire replacements, presumably, and they might actually be more risky than the pilots being forced out. What had FAA done to learn about either the uncertainties of aging or this possible amplification of pilot failure risk? At the very least, improving American life expectancies from 1959 to 2007 (from roughly 69 to roughly 77) should have prompted more FAA experimentation with the relevant norms. An arbitrary age cut-off is a reflection of uncertainty. Doing nothing to further specify the norms governing senior pilot eligibility in almost five decades of practice is a failure to remain communicative, deliberate and developmental. What should a reviewing court have done? If it was evident that arbitrariness review was making the safety of a valid rule into the agency’s crutch, an experimentalist court would have engaged the overall context. A shrewd judge would surely have found some way to fault the agency’s own norms for blocking the gathering of better actuarial data over time. 160 More than some errant dicta to that effect,161 though, any court could have drawn a connection between its own primitive tools in arbitrariness review as we have institutionalized them and what little FAA was doing to decrease its own arbitrariness. That kind of self-audit may be rare in judicial review today but it would go some distance toward Dewey’s utopia. In the Clean Air Act greenhouse endangerment case, the Supreme Court’s finding that greenhouse gases from new U.S. autos will be “air pollutants” and its framing of EPA’s 2003 deliberations as demonstrably contrary to the Act was either unreasoned or inadequately communicated. Apparently convinced that EPA’s reasoning was somehow motivated by politics, the Court rejected the agency’s given explanation. But the Court is at least guilty of the same failings it found in EPA: without a good argument that the Clean Air Act cares nothing about causal efficacy in the regulation of “pollution,” the majority’s holding seems motivated or biased. The ensuing (bizarre) EPA rulemakings have all foundered in the very dilemmas EPA first articulated and saw belittled in Massachusetts. Globalized markets limit the practical value of controlling fossil fuels in only some locations, especially because fossil fuel combustion has for so long been so widely identified with freedom and economic growth. Regulatory fragmentation deprives EPA of the jurisdiction needed to control emissions of the six principal (“well-mixing”) greenhouse gases in any economy-wide fashion. The (potentially strategic) reactions of others will be the difference between a pointless drag on one’s own economy and incremental progress toward a carbon-constrained future. The key is in the contributions, and perhaps the contributory ethics, of all relevant others – something no single agency (and surely not one organized like EPA) can dictate. After Massachusetts, EPA now

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seems to have to regulate everything and everyone almost at once even as the United States’ contribution to global climate disruption continues to shrink in relative terms. Given that the tools in the Act were never designed to solve so engrossingly global a problem, EPA probably will not find its own best measure of agency autonomy. EPA cannot possibly succeed without the abiding support of the President and a variety of Cabinet-level departments. Indeed, if EPA is mostly a “taker” of the strategies adopted to cope with this enormous collective action problem, the choices of others – merely by changing the relative probabilities of some outcomes – could reorder EPA’s priorities and thus the outward appearances of EPA’s reasoning.162 Yet, if history is any guide, some of those actors, or those with whom they partner, will also be EPA’s toughest obstacles.163 These are, in a sense, the wages of the Supreme Court’s naïve separation of science from politics in Massachusetts – and perhaps of reviewing courts that ignore the biasing effects of their own power. There can be nothing illicit in an agency openly confronting the limits of its own agency, its own agential constraints. And with a total of 35 different petitioners and some 80 distinct legal claims challenging the four separate rulemakings that followed from Massachusetts,164 EPA today faces a reason-giving gauntlet of unprecedented proportions. Perhaps now that it is no longer a Bush Administration lamenting the scale or scope of greenhouse gases as “pollution” to be prohibited, but rather an Obama presidency committed to avoiding showdowns that pit the economy versus the environment, the Supreme Court will “defer” to EPA’s reluctance to makes rules without the requisite information. If so, the Court may be able to contain the damage done to practical public reason in our climate politics, at least for the time being. But it will have contributed little to the project. A pragmatic model of agency arbitrariness starts with agencies as constructed, internally plural, dynamic, and complex selves that evolve over time and depend on their “political” leaders (who bring their own biases) to do so. It avoids dualisms like science versus politics in contexts where they are unavoidably intertwined. And it would probably look beyond the accidents of particular judicial cases to invest (scarce) cognitive resources in monitoring whether an agency is adapting itself in order to learn-by-doing. We need not agree on a complete theory of democracy or on just how agencies can be better agents of the public to agree that they should be organized to learn from experience in context. That low-level principle would have gone a distance toward improving our thinking about climate change had it animated the courts (or EPA) before now. Recording, sorting and publicizing economy-wide emissions data at manageable expense without double counting and over a long enough interval to scrutinize ostensible causes would have been a smart move in 1990.165 By 2009, it was simply long overdue. 166 This returns us to the standards of review and their practical differences. If arbitrariness review differs from substantial evidence review because only the latter must proceed from a closed record, that should feedback on and inform a

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court’s institutional role in each. If arbitrariness review need not proceed from a closed record, then its signature virtue may be that the predictive and projective techniques so endemic to general rulemaking can be assessed diachronically. That is, with administrative agencies so likely to lose intensity and purpose over time, courts are uniquely positioned to hold them to their promises. If rulemakings must be finalized before all the facts are in, ideally this should result in some kind of “justification I.O.U.,” redeemable in court with the passage of time. For example, if EPA promises that it is not just ignoring most sources by first regulating the enormous ones,167 its arbitrariness ought to be judged, at least in part, by whether it makes good on that pledge. 168 In the orthodox account, this perhaps boils down to seeking constantly the exchange of uncertainty for risk that is quantifiable, manageable, and distributable. But in a more pragmatic light, reviewing courts view agency reasons as experiments. Experimentation is nothing more than methodical testing with the goal of falsifying, verifying, or validating a hypothesis. They vary in scale and scope, but all experiments rely on transparent, repeatable procedure and analysis after the fact. Reasons for agency action cannot, on any experimentalist approach to uncertainty, be fully tested from within the confines of any single iteration – any single judicial case or controversy. And society and the problems we delegate to agencies are too complex, too broad, and too politically polarizing to expect reasons that justify irrespective of predisposition or perspective. Until the judiciary adapts to this context, agency judgment and justification will remain obscure no matter how hard the look.

NOTES 1. See John Dewey, The Public and Its Problems (1927; University Park: Pennsylvania State University Press, 2012), p. 57. 2. See Christopher K. Ansell, Pragmatist Democracy: Evolutionary Learning as Public Philosophy (New York: Oxford University Press, 2011), pp. 9–14, 152–154, 167. 3. 5 U.S.C. § 702 (creating a right of review in any “person suffering legal wrong because of agency action”). 4. 5 U.S.C. § 706. 5. 5 U.S.C. § 706(2). A total of six assumes that each subsection of 706(2) provides only one ground of reversal – an assumption that is certainly open to doubt. For example, an agency “action” could be “not in accordance with law” and yet be neither “arbitrary” nor “capricious.” But see id. at § 706(2)(A). I adopt this interpretation of Section 706 for argument’s sake. 6. Section 10(e)5 U.S.C. § 706(2)(A). 7. Cf. Bi-Metallic Invest. Co. v. State Bd. of Equalization, 239 U.S. 442, 446 (1915) (holding that when an administrative authority takes action and a small number of persons are “exceptionally affected, in each case upon individual grounds,” the Due Process Clause requires that they be afforded some kind of adjudicatory hearing).

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8. See, e.g., Thomas W. Merrill, “Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law,” Columbia Law Review 111 (2011), pp. 939, 965–79. 9. See John F. Duffy, “Administrative Common Law in Judicial Review,” Texas Law Review 77 (1999): 113. 10. See Duffy, “Administrative Common Law in Judicial Review,” pp. 113, 118– 119. 11. On the replacement of common law exhaustion doctrines with the APA’s requirement of “final agency action,” see Darby v. Cisneros, 509 U.S. 137 (1993). 12. On the evasion of the APA’s mandate to reviewing courts that they “hold unlawful and set aside agency action, findings and conclusions found to” violate its strictures, see Checkosky v. SEC, 23 F.3d 452 (D.C. Cir. 1994) (remanding without vacating SEC action found to be “arbitrary and capricious”). 13. On the propriety of an additional “ripeness” challenge that may delay judicial review until a challenging party suffers some material injury, see Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). 14. See, e.g., Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654 (1935). 15. To be clear, the standard of proof in criminal matters – beyond a reasonable doubt – is supposed to be a higher standard of proof than is required in civil matters where the proof required is a “preponderance of the evidence.” See, e.g., Jackson v. Virginia, 443 U.S. 307, 317–319 (1979). How much higher and/or whether these two are best conceived in probabilistic terms is a question beyond our scope here, although it warrants mention that even common law courts obviously understood the spectral nature of proof. 16. See, e.g., Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 500 (1984). 17. See Easley v. Cromartie, 532 U.S. 234, 574 (2001). 18. See, e.g., Anderson v. Bessemer City, 470 U.S. 564, 574–575 (1985). 19. Bose Corp., 466 U.S. at 500; Jackson, 443 U.S. at 324. Juries and trial judges have long been treated differently along this front by appellate courts’ standards of review, although it is less clear that that stems from their psychological makeup rather than their relative legal standing under Article III or the Sixth and Seventh Amendments. See Weisgram v. Marley Co., 528 U.S. 440, 448 (2000); Markman v. Westview Instruments, Inc., 517 U.S. 370, 376–378 (1996). 20. See, e.g., Pierce v. Underwood, 487 U.S. 552, 558 n.1 (1988). For example, evidentiary rulings are reviewed on an abuse of discretion standard. See General Electric Co. v. Joiner, 522 U.S. 424, 433 (2001), as is the awarding or withholding of injunctive relief. See eBay v. MercExchange, U.S. (2006). 21. See, e.g., Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990) (“A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.”); United States v. Taylor, 487 U.S. 326, 336 (1988) (“Whether discretion has been abused depends ... on the bounds of that discretion and the principles that guide its exercise.”) 22. Verizon Communications, Inc. v. Inverizon Int’l, Inc., 295 F.3d 870, 873 (8th Cir. 2002). 23. See, e.g., Clinton v. Jones, 520 U.S. 681, 706–708 (1997). 24. See Thompson v. Keohane, 516 U.S. 99, 109–110 (1995); Pullman-Standard v. Swint, 456 U.S. 273 (1982). The Federal Rules of Civil Procedure codified a measure

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of deference to a trial court’s findings of fact in different language, requiring that they “must not be set aside [upon review] unless clearly erroneous” F.R.C.P. 52(a)(6). 25. See Maurice Rosenberg, “Judicial Discretion of the Trial Court, Viewed from Above,” Syracuse Law Review 22 (1971), p. 635. Constitutional challenges were routine. See, e.g., Opp Cotton Mills, Inc. v. Administrator, 312 U.S. 126 (1941). 26. Juries’ findings of fact were the first to be reviewed according to a “substantial evidence” standard before the standard was applied to administrative agencies. See, e.g., Gunning v. Cooley, 281 U.S. 90, 93 (1930). Eventually, the two standards were both described in similar terms, see Shields v. Utah Idaho Central R.R., 305 U.S. 177 (1938); NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939), and then “substantial evidence” became something of a default standard courts would apply in reviewing agencies’ findings of fact. See Virginia Elect. & Power Co. v. NLRB, 319 U.S. 533 (1943); NLRB v. Waterman Steamship Corp., 309 U.S. 206, 224– 226 (1940). Rule 52’s “clearly erroneous” standard replaced “substantial evidence” in the review of findings of fact by trial courts in 1937. While the two standards are nominally distinct, in practice they have proven remarkably similar. See Dickinson v. Zurko, 527 U.S. 150, 162–164 (1999). Both have been explicated in terms of the persons being reviewed. Cf. United States v. United States Gypsum Co., 333 U.S. 364, (1948) (holding that findings are “clearly erroneous” where the “reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed”); Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (explaining “substantial evidence” standard as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”). 27. See E. Blythe Stason, “‘Substantial Evidence’ in Administrative Law,” University of Pennsylvania Law Review 85 (1941), pp. 1026, 1037–1039. 28. In Pacific States Box & Basket Co. v. White, 296 U.S. 176 (1935), Justice Brandeis for the Court held that a “presumption of validity” attached to agency action just as it did to legislation – at least for purposes of the Due Process clauses. Id. at 185–186. In National Labor Relations Bd. v. Universal Camera Corp., 340 U.S. 474 (1951), a rather pedantic opinion by Justice Frankfurter stated that no such presumption of validity could be reconciled with a reviewing court’s responsibilities under APA Section 10(e). Id. at 495–496. 29. Probabilism played little to no role in early discussions of substantial evidence, though, so the magnitude of this burden was never quite specified. Contrary evidence in the record was never tantamount to a lack of substantial evidence. See Denver Union Stockyard Co. v. United States, 304 U.S. 470 (1937). While some early cases did seem to involve the court in weighing the evidence itself, see, e.g., Federal Trade Comm’n v. Curtis Publishing Co., 260 U.S. 568 (1923); Federal Trade Comm’n v. Gratz, 253 U.S. 421 (1920), that notion quickly gave way to a more deferential “warrant in the record” model. See NLRB v. Hearst Pubs., Inc., 322 U.S. 111, 131 (1944). 30. The review of judgments of the Tax Court was long ago placed under a substantial evidence standard. See, e.g., Dobson v. Com’r, 320 U.S. 489 (1943). 31. See ICC v. Jersey City, 322 U.S. 503, 513 (1944); Opp Cotton Mills, Inc. v. Administrator, 312 U.S. 126 (1941). 32. See, e.g., Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951). This may have been a selection effect, i.e., a function of which (biased) sample of matters were brought to court Allentown Mack Sales & Serv. v. NLRB, 522 U.S. 359 (1998). 33. See, e.g., Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414–415 (1971).

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34. See 5 U.S.C. §§ 554(a), 553(c). 35. See Ronald J. Allen, “Factual Ambiguity and A Theory of Evidence,” Northwestern University Law Review 88 (1994): 604, 616–630 (observing that the law of evidence and the system of proof burdens is best explained not in formal, probabilistic terms but rather as a way of eliciting and responding to the “best explanation” for the evidence introduced). Examples of this approach in arbitrariness review are plentiful. See, e.g., Mobil Oil Corp. v. FPC, 483 F.2d 1238, 1258–1263 (D. C. Cir. 1973); Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 1213–1215 (5th Cir. 1991). Most especially, the legal tradition implies rights of confrontation – discovery, motions in limine, cross-examination, offers of proof, etc. Evidence accepted as such has been probed or at least occasioned the opportunity to do so. 36. See Fed. R. Evid. 401 (defining “relevant evidence” as “having any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence”). Of course, the rules of evidence do not apply in agency proceedings. See Castillo-Villagra v. INS, 972 F.2d 1017, 1026 (9th Cir. 1992). Nevertheless, the tradition from which judicial review of agency action stems cannot but exert a significant influence on judges asked to assess a finding of fact, especially when the statutory standard explicitly invokes that tradition. Cf. id. at 1027–1029 (using the rules of evidence as a guide). 37. The D.C. Circuit, in an opinion taken up by the Supreme Court but ultimately affirmed in pertinent part, held that “[t]he substantial evidence test provides for more rigorous scrutiny than the usual “arbitrary and capricious” test applicable to informal rulemaking.” American Fed’n of Labor v. Marshall, 617 F.2d 636, 649 (D.C. Cir. 1979), aff’d sub. nom., American Textile Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490 (1981). That same court later said the exact opposite. See Ass’n of Data Processing Serv. Organizations, Inc. v. Board of Governors of the Federal Reserve Sys., 745 F.2d 677, 683–684 (D.C. Cir. 1984) (ADAPSO). 38. See ADAPSO, 745 F.2d at 683–684. 39. 745 F.2d at 684. 40. See 28 U.S.C. 2112(b) (defining the record as “the order sought to be reviewed or enforced, the findings or report upon which it is based, and the pleadings, evidence, and proceedings before the agency ... or such portions” as are filed pursuant to local rule, stipulation of the parties, or by motion of the court). Some courts provide for the filing of record excerpts along with the parties’ briefs. See Alan R. Gilbert, “Composition of Record on Review of Agency Action” under 28 U.S.C. § 2112(b) and Rule 16(a) of Federal Rules of Appellate Procedure, 32 A.L.R., (1977): 648, 649–650. Furthermore, the code provides that “[t]he agency ... may, at its option ... file in the court the entire record of the proceedings before it without abbreviation.” Id. at § 2112(c). This may well be, in the era of big data and digitization, a back-door for agencies to disguise or confuse the issues for review. 41. See Elizabeth Magill and Adrian Vermeule, “Allocating Power Within Agencies,” Yale Law Journal 120 (2011), pp. 1032, 1069 (arguing that the party who assembles the “record” in the first instance, i.e., the hearing neutral or “Administrative Law Judge,” is empowered by substantial evidence review). 42. See, e.g., Steadman v. Securities and Exchange Comm’n, 450 U.S. 91, 96–97 & n.13 (1981); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (1978); United States v. Florida East Coast R.R. Co., 410 U.S. 224 (1973); United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742 (1972).

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43. Because most on-the-record proceedings will be governed by the APA, see 5 U.S.C. § 559, unless “otherwise provided by statute, the proponent of a rule or order has the burden of proof.” Id. at § 556(d). Thus, when substantial evidence review occurs, it will be of a proceeding and findings of fact where the agency – normally the proponent of its rule/order – will have had to carry a burden of proof/persuasion with “reliable, probative, and substantial evidence.” Id. 44. See Dunlop v. Bachowski, 421 U.S. 560, 571–574 (1975); Camp v. Pitts, 411 U.S. 138, 139–141 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 417–421 (1971). 45. See, e.g., Greater Boston, 444 F.2d at 851 (calling the court’s review a “supervisory function”); Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 597–598 (D.C. Cir. 1971); Kennecott Copper Corp. v. EPA, 462 F.2d 846, 850–851 (D.C. Cir. 1972); International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 641–647 (D.C. Cir. 1973); Ethyl Corp. v. EPA, 541 F.2d 1, 96 (D.C. Cir. 1976) (Wilkey, J., dissenting). 46. See Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 463 U.S. 843 (1984). 47. See Dunlop v. Bachowski, 421 U.S. 560, 571 (1975); see also Chevron, 467 U.S. at 865–866; Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103–104 (1983); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 547–548 (1978); cf. Industrial Union Dept., AFL-CIO v. Hodgson, 499 F.2d 467, 474–476 (D.C. Cir. 1974). 48. 5 U.S.C. § 706(2)(A) (emphasis added). 49. See, e.g., National Labor Relations Bd. v. Hearst Pubs., Inc., 322 U.S. 111, 115–116 (1944). 50. See, e.g., Donald Davidson, Essays on Actions and Events (Oxford: Oxford University Press, 1980). 51. See, e.g., Pullman-Standard, Inc. v. Swint, 456 U.S. 273, 289 & n.19 (1982). 52. FCC v. Fox Television Stations, 129 S. Ct. 1800, 1810 (2009). 53. See, e.g., Greater Boston, 444 F.2d 841, 851 (D.C. Cir. 1970); WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969); Pike’s Peak Broadcasting Co. v. FCC, 422 F.2d 671 (D.C. Cir. 1969). A formative National Environmental Policy Act (NEPA) precedent from the D.C. Circuit at the same time held, if not in so many words, that NEPA requires agencies to take a hard look at the environmental consequences of their decisions. See Calvert Cliffs Coord. Comm. v. U.S. Atomic Energy Comm’n, 449 F.2d 1109, 1123 (D.C. Cir. 1971) (“NEPA mandates a case-by-case balancing judgment on the part of federal agencies.”). See also Industrial Union Dept., AFL-CIO v. Hodgson, 499 F.2d 467, 474– 476 (D.C. Cir. 1974). 54. Greater Boston, 444 F.2d at 841, 851. 55. Industrial Union Dept., AFL-CIO v. Hodgson, 499 F.2d 467, 475–476 (D.C. Cir. 1974). 56. See, e.g., Matthew Warren, “Active Judging: Judicial Philosophy and the Development of the Hard Look Doctrine in the D.C. Circuit,” Georgetown Law Journal 90 (2002), pp. 2599, 2611–2615. 57. In Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, the Court held that § 706(2)(A)’s review for arbitrariness presumed that agencies would substantiate their own reasons and decision-making. Id. at 419–420. Agencies like EPA pioneered the creation of records in “informal” proceedings consistent with this expectation. See, e.g.,

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William F. Pedersen, Jr., “Formal Records and Informal Rulemaking,” Yale Law Journal 85 (1975), pp. 38, 51–59. Congress has done nothing to apply such norms generally. 58. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 543 (1978); see generally Jerry L. Mashaw and David L. Harfst, The Struggle for Auto Safety (Cambridge, Mass.: Harvard University Press, 1990). 59. See Ethyl Corp. v. EPA, 541 F.2d 1, 33–37 (D.C. Cir. 1976). 60. See, e.g., Friends of the Earth v. AEC, 485 F.2d 1031, 1032–1033 (D.C. Cir. 1972); International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 650–653 (D.C. Cir. 1973) (Bazelon, J., concurring); Ethyl Corp. v. EPA, 541 F.2d 1, 66–68 (D.C. Cir. 1976) (Bazelon, J., concurring). 61. See Edward H. Rubin, Beyond Camelot: Rethinking Politics and Law for the Modern State (Princeton, N.J.: Princeton University Press, 2005). 62. See Motor Vehicle Mfrs. Ass’n v. State Farm Automobile Ins. Co., 463 U.S. 29, 43 (1983). The Court was also explicit that it did “not view as equivalent the presumption of constitutionality afforded legislation drafted by Congress and the presumption of regularity afforded an agency in fulfilling its statutory mandate.” 463 U.S. at 43 n.9. The implication was that the agencies’ was the weaker presumption. 63. State Farm, 463 U.S. at 43. Quoting one of the original hard look precedents, the Court further observed that “[a]n agency’s view of what is in the public interest may change, either with or without a change in circumstances. But an agency changing its course must supply a reasoned analysis.” Id. at 57 (quoting Greater Boston, 444 F.2d at 852). Some, therefore, referred to State Farm’s formula as the “swerve” doctrine. 64. See Edley, supra, at 61–66. 65. State Farm, 463 U.S. at 43–44. 66. See State Farm, 463 U.S. 29, 43–44 (emphasis added). 67. See State Farm, 463 U.S. at 46–57 (reviewing arguments and information from the fifteen year history of Standard 208’s proposal finalization, repeal, subsequent re-proposals and re-finalization). 68. The further irony is that the Safety Act nowhere explicitly levied the substantial evidence requirement the State Farm Court assumed. See State Farm Mutual Auto Ins. v. Dept. of Transp., 680 F.2d 206, 218–220 (D.C. Cir. 1982) (noting the Act’s various interpretations by reviewing courts and concluding that there was no practical difference because arbitrariness and substantial evidence review are substantially the same inquiry). Imposing the substantial evidence scope of review, though, arguably ignored the Court’s own admonitions in Vermont Yankee and Florida East Coast Ry. 69. State Farm Mutual Auto Ins. v. Dept. of Transp., 680 F.2d 206, 229 (D.C. Cir. 1982), rev’d, Motor Vehicle Mfrs. Ass’n v. State Farm Automobile Ins. Co., 463 U.S. 29, 43–44 (1983). 70. “The standard [being] rescinded was the subject of approximately 60 notices of proposed rulemaking, hearings, amendments, and the like between 1969 and 1981.” State Farm, 680 F.2d at 209. Indeed, throughout the Safety Act’s standard-setting processes, the statute’s record requirement became of singular importance. See Automotive Parts & Accessories Ass’n v. Boyd, 407 F.2d 330, 336–338 (D.C. Cir. 1968); Chrysler Corp. v. Dept. of Transp., 472 F.2d 659, 669, 681 n.29 (6th Cir. 1972); Mashaw and Harfst, supra, at 156–171. 71. Expertise is nothing more (or less) to the legal system than “knowledge, skill, experience, training or education” that “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702. Standard 208’s accumulated record of projected vehicle price increases, avoided fatalities, probable forcing of

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technologies, etc., was deficient not because it lacked expert testimony but rather because it lacked expert testimony answering the exact questions framed by State Farm’s lawyers. See Mashaw and Harfst, supra, at 210–223. Lower federal courts have routinely found themselves on this slippery slope when reviewing agency action that relies on expertise. See American Radio Relay League, Inc. v. FCC, 524 F.3d 227, 245–248 (D.C. Cir. 2008) (Kavanaugh, J., concurring and dissenting in part). 72. See, e.g., American Radio Relay League, Inc. v. FCC, 524 F.3d 227, 237 (D.C. Cir. 2008) (“It would appear to be a fairly obvious proposition that studies upon which an agency relies in promulgating a rule must be made available during the rulemaking in order to afford interested persons meaningful notice and an opportunity for comment.”); United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 251 (2d Cir. 1977) (concluding that “when the pertinent research material is readily available and the agency has no special expertise on the precise parameters involved” there is no “reason to conceal the scientific data relied upon from the interested parties”). 73. In a recent rulemaking adjusting the applicability of the Clean Air Act’s “new source review” requirements to emitters of the six principal greenhouse gases, EPA received over 400,000 comments in response to its proposed rule. See U.S. EPA, Final Rule: Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31514 (2010). 74. See, e.g., Kumho Tire Co. v Carmichael, 526 U.S. 137, 597 (1993); Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); Bourjaily v. United States, 483 U.S. 171 (1987). 75. Cf. Edley, supra, at 56 (“[N]o natural law of management assures us that a collection of experts will produce worthy administration. The whole is neither more nor less than the sum of its parts. It is an altogether different phenomenon.”). 76. U.S. Const. Art. II, § 3. 77. 42 U.S.C. § 7521(a)(1). The petition in question named only carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), and hydro-fluorocarbons (HFCs) as “greenhouse gases.” See U.S. EPA, Notice and Request for Comment, Control of Emissions from New and In-use Highway Vehicles and Engines, 66 Fed. Reg. 7486, 7486 (2001). Water (H2O) vapor is a major GHG also emitted from motor vehicle exhaust. See U.S. EPA Office of Transp. & Air Quality, Greenhouse Gas Emissions from the U.S. Transp. Sector, 1990–2003 3 (2003). 78. Massachusetts v. EPA, 549 U.S. 497, 529–533 & n.26 (2007). 79. See 42 U.S.C. § 7602(g) (defining “air pollutant” to include “any physical, chemical ... substance or matter which is emitted into or otherwise enters the ambient air” as an “air pollution agent”). No definition of air pollution agency appears in the act. 80. Massachusetts, 549 U.S. at 507–509. 81. The “record” was the petition itself, a Federal Register notice requesting comment on the petition, the public comments thereon received, and the Federal Register notice denying the petition. See U.S. EPA, Control of Emissions From New Highway Vehicles and Engines: Notice of Denial of Petition for Rulemaking, 68 Fed. Reg. 52922 (2003). EPA was under no obligation to confine its explanation for the denial to this “record,” though. 82. 68 Fed. Reg. at 52927. The dissent made much of EPA’s discussion of the lingering doubts about climate change’s causation. See Massachusetts, 549 U.S. at 553– 555. It is, however, a mistake to infer that EPA had argued, even in 2003, that climate change was probably not in progress. What the agency argued was that causality,

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especially as between the several different agents, could not be “unequivocally established.” Id. at 553. That would be true of any causal relationship, though. 83. Two prior EPA General Counsels had taken the position that the Clean Air Act did authorize EPA to regulate greenhouse gases as air pollutants. 68 Fed. Reg. at 52925. However, the agency’s amended interpretation was explained not on the basis of changed personnel, but rather in light of a then-recent Supreme Court precedent, FDA v. Brown and Williamson Tobacco Corp., 529 U.S. 120 (2000). 84. See 68 Fed. Reg. at 52928 (citing Brown and Williamson). 85. Had that been the agency’s “finding,” one would have expected to see more attention to the GHGs not even mentioned by the petitioners – emissions like water vapor, black carbon, sulfur hexaflouride (SF6), and perfluourocarbons (PFCs). 86. The Act even explicitly stated that the Administrator had to make a “judgment” whether the cited “air pollutants” either “cause” or “contribute to” public endangerment. See 42 U.S.C. § 7521(a)(1); Massachusetts, 549 U.S. at 549 (Scalia, J., dissenting). 87. See 68 Fed. Reg. at 52929, 52930, 52931. 88. “[T]he statute says nothing at all about the reasons for which the Administrative may defer making a judgment – the permissible reasons for deciding not to grapple with the issue at the present time.” Massachusetts, 549 U.S. at 552 (Scalia, J., dissenting). 89. See Massachusetts, 549 U.S. at 535. 90. See 68 Fed. Reg. at 52925, 52931; Massachusetts, 549 U.S. at 533 (“[O]nce EPA has responded to a petition for rulemaking, its reasons for action or inaction must conform to the authorizing statute.”). 91. See Motor Vehicle Mfrs. Ass’n v. State Farm Automobile Ins. Co., 463 U.S. 29, 43 (1983). 92. See H.L.A. Hart and Tony Honoré, Causation in the Law, 2d ed., (New York: Oxford University Press, 1985), pp. 122–125, 245–249. 93. Cf. Hart and Honoré, supra, at 264 (“[T]here is a logical absurdity in asking whether the risk of further harm, arising from a harmful situation which a reasonable man would not have created, would itself have deterred a reasonable man from acting.”). 94. Massachusetts, 549 U.S. at 533 (“EPA has refused to comply with th[e] clear statutory command.”). 95. EPA’s eventual endangerment finding took pains to emphasize this aspect of greenhouse gases and their control – that “[u]nlike most traditional air pollutants, GHGs become well mixed throughout the global atmosphere so that the long-term distribution of GHG concentrations is not dependent on local emission sources.” U.S. EPA, Advanced Notice of Proposed Rulemaking: Regulating Greenhouse Gas Emissions Under the Clean Air Act, 73 Fed. Reg. 44354, 44401 (2008). 96. See Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976); Lead Industries Ass’n, Inc. v. EPA, 647 F.2d 1130, 1156–1167 (D.C. Cir. 1980); American Petroleum Inst. v. Costle, 665 F.2d 1176, 1184–1187 (D.C. Cir. 1981). In Ethyl Corp., the D.C. Circuit confronted lead as a fuel additive and its regulation under Title II of the Clean Air Act. The argument was made in contesting EPA’s endangerment finding there that lead entered the body from so many different sources that regulating it as a fuel additive was pointless. Id. at 8–9. It was only with the evidence gathered suggesting that airborne lead from fuel additives was a significant source of human blood lead contamination that the en banc majority upheld EPA’s determination. See id. at 31–32. Likewise, in the famous Benzene case, Justice Stevens himself (the author of the majority opinion in

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Massachusetts) wrote for a plurality considering an ambiguous mandate in the Occupational Safety and Health Act that the agency protect workers from risk that the agency must first find that exposure to toxics like benzene create a “significant” risk and not simply a trivial or redundant risk. See Industrial Union Dept., AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 639–47 (1980) (Stevens, J., joined by Burger, Stewart, Powell, JJ.). 97. See, e.g., Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 863–866 (1984); Colin S. Diver, “Statutory Interpretation in the Administrative State,” University of Pennsylvania Law Review 133 (1985), p. 549. 98. See Bertrand Russell, The Principles of Mathematics (Cambridge, UK: Cambridge University Press, 1903), p. 101. 99. 42 U.S.C. § 7521(a)(1). 100. Massachusetts, 549 U.S. at 552-53 (Scalia, J., dissenting) (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)). The applicability of the Chevron doctrine to this particular agency interpretation need not concern us here as there were (and are) other deference doctrines that were equally appropriate under the circumstances. 101. See Richard J. Pierce, Jr., “What Factors Can an Agency Consider in Making a Decision?,” Michigan State Law Review (2009), p. 67. 102. See, e.g., Weyerhaeuser Co. v. Costle, 590 F.2d 1011, (D.C. Cir. 1978). 103. See, e.g., Lead Industries Ass’n v. EPA, (D.C. Cir. 1980). 104. See, e.g., Whitman v. American Trucking Ass’ns, Inc., 531 U.S. 457 (2001) (affirming that EPA cannot consider cost in the setting of National Ambient Air Quality Standards under Clean Air Act § 109(a) consistent with long standing precedent to that effect). 105. See, e.g., Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 222–227 (2009). 106. See, e.g., E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 133 (1977). 107. I use “epistemic” here as an umbrella for the set of all risks of error that a decision-maker confronts which is the result of its own competence or cognition. 108. Cf. Scott Brewer, “Scientific Expert Testimony and Intellectual Due Process,” Yale Law Journal 107 (1998), p. 1535 (arguing that wherever arguments are close, there are compelling reasons to doubt that nonexpert legal decision-makers can acquire information from an expert in any way that is both legally and epistemically justified); Christopher Tarver Robertson, “Blind Expertise,” New York University Law Review 85 (2010), pp. 174, 181–201 (arguing that party-selected experts are often unconsciously biased and that trial judges lack the necessary competence to sort out the testimony that is accurate and truth-tracking from that which is erroneous or error-prone). 109. See Anthony Giddens, The Consequences of Modernity (Stanford, CA: Stanford University Press, 1990), pp. 27–28. 110. See, e.g., Thomas J. Miles and Cass R. Sunstein, “The Real World of Arbitrariness Review,” University of Chicago Law Review 75 (2008), p. 761. 111. Reviewing courts have long insisted that an agency’s “post hoc rationalizations,” i.e., explanations or evidence occasioned by the litigation itself, are not to be trusted. See, e.g., SEC v. Chenery Corp., 332 U.S. 194, 197–199 (1947); American Textile Mfrs., Inc. v. Donovan, 452 U.S. 490, 539 (1981). 112. For the more general claim that combining too much of a cognitive load into one decisional point is a failure of institutional design, see Frederick Schauer, “Do Cases Make Bad Law?” University of Chicago Law Review 73 (2006), p. 883.

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113. Cf. Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation (Cambridge, Mass.: Harvard University Press, 2006) (detailing a generally skeptical account of “judicial capacities” in the common law method of legal exposition). 114. On the failures of motivated judicial reasoning more generally, see Eileen Braman, “Searching for Constraint in Legal Decision Making,” in The Psychology of Judicial Decision Making, ed. David Klein and Gregory Mitchell (New York: Oxford University Press, 2010), p. 203. 115. See, e.g., David O. Brink, “Legal Theory, Legal Interpretation, and Judicial Review,” Philosophy and Public Affairs 17 (1988), 105. This kind of “semantic realism” surged in philosophy in the 1970s as a result of Kripke’s and Putnam’s works. See Brian Bix, Law, Language, and Legal Determinacy (New York: Oxford University Press, 1993), pp. 162–171. 116. See, e.g., Kent Greenawalt, Legislation: Statutory Interpretation: 20 Questions (New York: Foundation Press, 1999), pp. 91–105. There are obviously other possibilities. See William N. Eskridge, Jr. and Philip P. Frickey, “Statutory Interpretation as Practical Reasoning,” Stanford Law Review 42 (1990), p. 321. I mention these two as but an orthodox account of the diversity of linguistic sensibilities. But see Gareth Evans, The Varieties of Reference, ed. John McDowell (Oxford, UK: Oxford University Press, 1982). 117. See Vermeule, supra, at 118–48 (arguing that the “common conceptual mistake” in accounts of judicial review is “the undefended assumption that sustained judicial coordination on a particular interpretive approach is feasible” and that that assumption is, in fact, unwarranted given the heterogeneity and independence of the judiciary). 118. See Richard E. Levy and Robert L. Glicksman, “Agency-Specific Precedents,” Texas Law Review 89 (2001), p. 499. 119. See Eric Talley, “Precedential Cascades: An Appraisal,” Southern California Law Review 73 (1999), pp. 87, 99–120. “If judges have a hard time avoiding what they see as the right result for the particular case in all of its contextual richness, and if they are at the same time making law for future cases, then the combination of the salience of the particular case and the pull to decide it correctly may produce a rule that is unrepresentative of the full range of future cases that can be expected to be decided under it.” Schauer, supra, at 900. 120. See, e.g., John H. Langbein, “The German Advantage in Civil Procedure,” University of Chicago Law Review 52 (1985), pp. 823, 833 n.31 (“Wigmore’s celebrated panegyric – that cross-examination is ‘the greatest legal engine ever invented for the discovery of truth’ – is nothing more than an article of faith.... In the hands of many of its practitioners, cross-examination is not only frequently truth-defeating or ineffectual, it is also tedious, repetitive, time-wasting, and insulting.”). 121. David M. Estlund, Democratic Authority: A Philosophical Framework (Princeton, N.J.: Princeton University Press, 2008), p. 67. 122. See, e.g., Philip Kitcher, Abusing Science: The Case Against Creationism (Cambridge, Mass.: MIT Press, 1982); cf. Brewer, supra, at 1590–1596 (observing the compound challenge for non-experts in judging the competence of experts in that expertise comes in degrees and domains and that it is constantly changing through updates, overthrow, etc.). 123. Christopher Tarver Robertson, “Blind Expertise,” New York University Law Review 85 (2010), pp. 174, 202.

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124. John F. Manning and Matthew C. Stephenson, Legislation and Regulation (New York: Foundation Press, 2010), p. 112. 125. See Stephen Breyer, “Judicial Review of Questions of Law and Policy,” Administrative Law Review 38 (1986), p. 363, 380. Seven years before State Farm, the D.C. Circuit confronted this paradox of hard look review. A majority of the court sitting en banc answered that it was a reviewing court’s duty, in the face of its own incompetence on matters of scientific evidence, to “look at the decision not as the chemist, biologist, or statistician,” but rather to educate itself with the record and a “conscientious awareness” of the “limited nature” of its “narrowly defined duty of holding agencies to certain minimal standards of rationality.” Ethyl Corp v. EPA, 541 F.2d 1, 36 (D.C. Cir. 1976). While this sounds judicious, it masks the underlying epistemic paradox of hard look review with what amounts to euphony. 126. See, e.g., United States v. Storer Broadcasting Co., 351 U.S. 192, 198 (1956) (quoting Columbia Broadcasting System v. United States, 316 U.S. 407 (1942)). 127. See, e.g., Arizona Grocery Co. v. Atchison, T. & S.F. Ry. Co., 284 U.S. 370 (1932); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). 128. See Joseph Raz, Practical Reason and Norms (New York: Oxford University Press, 1975). This notion of rule-following is fairly standard. See, e.g., Frederick Schauer, Playing by the Rules (New York: Oxford University Press, 1991), pp. 88–89. 129. See, e.g., Abbott Labs. v. Gardner, 387 U.S. 136, 149–55 (1967); United States v. Nixon, 418 U.S. 683, 694–96 (1974); Chrysler Corp. v. Brown, 441 U.S. 281, 295–296 (1979); Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 101–102 (1983). 130. See, e.g., Bennett v. Spear, 520 U.S. 154 (1997). This was true before the APA and regardless of the agency’s labeling of its norm. See, e.g., Columbia Broadcasting System, Inc. v. United States 316 U.S. 407, 415–420 (1942) (holding that the FCC’s promulgation of its “Chain Broadcasting Regulations” by “order” was reviewable in an equity suit by those who would have to seek re-licensing subject to those regulations). 131. 5 U.S.C. § 551(4). Typical in this regard are agency policy statements to the public that, in practical effect, tie the agency to some particular judgment or course of conduct. See, e.g., Community Nutrition Inst. v. FDA, 818 F.3d 943, 948–950 (D.C. Cir. 1987) (enforcement guideline); Alaska Professional Hunters Ass’n v. FAA, 177 F.3d 1030 (D.C. Cir. 1999) (long-standing interpretation of agency regulation). 132. See, e.g., Morton v. Ruiz, 415 U.S. 199, 233–236 (1974). 133. Some agencies lack the authority to issue rules that bind the public. See, e.g., General Elec. Co. v. Gilbert, 429 U.S. 125, 140 (1977) (Equal Employment Opportunity Commission). But many agency rules that do not bind the public directly nevertheless have the practical effect of doing so indirectly. See Robert A. Anthony, “Which Agency Interpretations Should Bind Citizens and the Courts?” Yale Journal on Regulation 17 (1990), pp. 2–60. 134. Congress’s authorization is part and parcel of assessing the action the agency actually took. See, e.g., Abbott Labs. v. Gardner, 387 U.S. 136, 149–155 (1967); United States v. Nixon, 418 U.S. 683, 694–696 (1974); Chrysler Corp. v. Brown, 441 U.S. 281, 295–296 (1979); Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 101–102 (1983); Gonzales v. Oregon, 546 U.S. 243, 256–266 (2006). Of course, all of the problems with statutes noted in Section 2 operate here as well. 135. See, e.g., United States v. Eaton, 144 U.S. 677 (1892).

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136. Michael C. Dorf and Charles F. Sabel, “A Constitution of Democratic Experimentalism,” Columbia Law Review 98 (1998), pp. 267, 399. 137. Dorf and Sabel, supra, at 395. 138. See 14 C.F.R. §§ 121.1, 121.383(c)(2007), abrogated, Pub. L. No. 110–135, codified at 49 U.S.C. § 44729. 139. See Notice of Final Rule: Maximum Age Limitations for Pilots, 24 Fed. Reg. 9772 (1959). 140. See Air Line Pilots Ass’n Int’l v. Quesada, 182 F.Supp. 595 (S.D.N.Y. 1960), aff’d, Air Line Pilots Ass’n Int’l v. Quesada, 276 F.2d 892 (2d Cir. 1960); O’Donnell v. Shaffer, 491 F.2d 59 (D.C. Cir. 1974). 141. See, e.g., Starr v. FAA, 589 F.2d 307 (7th Cir. 1978); Rombough v. FAA, 594 F.2d 893 (2d Cir. 1979); Gray v. FAA, 594 F.2d 793 (10th Cir. 1979); Keating v. FAA, 610 F.2d 611 (9th Cir. 1979). 142. See Aman v. FAA, 856 F.2d 946, 954 n.7 (7th Cir. 1988). While other pilots became protected from such “age-related employment discrimination” through the federal Age Discrimination in Employment Act, commercial airline pilots and their employers remained governed by the FAA’s Age 60 rule. See Aman v. FAA, 856 F.2d 946, 954–956 & n.13 (7th Cir. 1988). 143. See 24 Fed. Reg. at 9772 (“[I]ncapacity ... cannot be predicted accurately as to any specific individual on the basis of presently available scientific tests and criteria. On the contrary, the evidences of the aging process are so varied in different individuals that it is not possible to determine accurately with respect to any individual whether the presence or absence of any specific defect in itself either led to or precluded a sudden incapacitating attack.”) 144. Every time the agency explained the rule’s original justification the reviewing court accepted it as valid and sufficient. See, e.g., Professional Pilots Fed’n v. FAA, 118 F.3d 758, 765 (D.C. Cir. 1997)(“There are no tests ... that can accurately determine the risk of an apparently healthy but older pilot suddenly being stricken by any one of the many potentially disabling conditions that may accompany advancing age.”). In the final iteration, the Professional Pilots’ Association proposed an evaluative tool – a means of screening blood for early indications of stroke or heart failure – but FAA’s rejection of the tool as incompletely developed was upheld over the pilots’ challenge. See Yetman v. Garvey, 261 F.3d 664, 673–675 (7th Cir. 2001). 145. The Federal Aviation Act arguably levied a “substantial evidence” requirement in the review of petition denials. See Aman v. FAA, 856 F.2d 946, 949–951 (7th Cir. 1988). The courts interpreted substantial evidence review in petition denial cases to require that some but not necessarily the weight of the evidence support FAA. See id. at 951–954 and n.6. 146. See U.S. General Accounting Office, Aviation Safety: Information on FAA’s Age 60 Rule for Pilots 17 (GAO/RCED-90-45FS) (November 1989). 147. After decades of successive arbitrariness challenges, one court of appeals seemed to confess the agency’s “power to establish a rigid policy” and to adhere to it “inflexibly” so long as its challengers could not prove FAA had given their claims no consideration at all. See Yetman, 261 F.3d at 679. That is probably more agency autonomy than we have reason to prefer. 148. The Federal Aviation Act directs FAA to regulate air travel “in the interest of safety.” 49 U.S.C. § 44701(a)(4). 149. In challenging the rational basis for any new rule, the pilots would presumably be in better position to draw out the FAA’s alleged inconsistencies in

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allowing younger pilots who had suffered a first heart attack, and younger pilots that suffered from alcoholism to fly commercially in the U.S. as long as they had obtained the right medical assurances while at the same time grounding pilots aged 60 + 1 day with exemplary health and safety records. See Yetman, 261 F.3d at 671–672. 150. Baker v. FAA, 917 F.2d 318, 322 (7th Cir. 1990). 151. In a GAO report to Congress it was revealed that by the end of 1989, 418 pilots had petitioned in 67 different proceedings seeking exemptions from the rule. See U.S. General Accounting Office, Aviation Safety: Information on FAA’s Age 60 Rule for Pilots 2 (GAO/RCED-90-45FS) (Nov. 1989). 152. Reviewing courts cannot, on one persuasive account of motivations, isolate the cause of the decision as being either from some discrete motivation or rather from some more generalized “disposition.” See Ruth Chang, “Introduction,” in Incommensurability, Incomparability, and Practical Reason, ed. Ruth Chang (Cambridge, Mass.: Harvard University Press, 1997), pp. 1, 12. 153. Simon Robertson, “Normativity, Reasons, Rationality,” in Spheres of Reason: New Essays in the Philosophy of Normativity, ed. Simon Robertson (Oxford, UK: Oxford University Press, 2009), pp. 1, 9. 154. It is possible to find cases – even cases of arbitrariness review – where earlier proceedings are not wholly ignored. See, e.g., Emily Hammond Meazell, “Deference and Dialogue in Administrative Law,” Columbia Law Review 111 (2011), p. 1722. 155. While courts had been reviewing petition denials for an “abuse of discretion,” see, e.g., Starr v. FAA, 589 F.2d 307 (7th Cir. 1978), that standard was jettisoned once FAA started keeping records conducive to “substantial evidence” review – even though the agency arguably was not bound to do so. See Aman v. FAA, 856 F.2d 946, 951 (7th Cir. 1988). 156. See Pub. L. No. 110–135, 121 Stat. 1450 (2007). In a bizarre twist, the statute provided no “retroactivity” to protect pilots who might miss its amnesty by mere days. See Jones v. Air Line Pilots Ass’n, Int’l, et al., 642 F.3d 1100, 1102 (D.C. Cir. 2011). 157. Equal Protection Clause and Due Process Clause challenges to the statute’s non-retroactivity rule have all been rejected thus far on a “rational basis” review. See, e.g., Jones v. Adams, 796 F.Supp.2d 67, 73–77 (D.D.C. 2011). 158. See Frank H. Knight, Risk, Uncertainty, and Profit (Boston: Hart, Schaffner and Marx, 1921), pp. 19–21, 197–232. 159. See Daniel A. Farber, “Uncertainty,” Georgetown Law Journal 99 (2011), pp. 901, 907–909. 160. But see Yetman v. Garvey, 261 F.3d 664, 678 (7th Cir. 2001) (“If the FAA was justified in imposing the Age Sixty Rule in the first place, then we cannot say that simply because it is the rule itself which blocks the generation of data necessary to consider the propriety of granting exemptions to the rule, that it was unreasonable for the FAA to find that it lacks that data.”). 161. In her dissent in Professional Pilots Federation, Judge Wald highlighted the point made in text and argued further that an experiment with some carefully screened group of 60-plus pilots could have improved agency knowledge. See Professional Pilots Fed’n v. FAA, 118 F.3d 758, 775 (D.C. Cir. 1997) (Wald, J., dissenting). 162 . See David M. Kreps, Notes on the Theory of Choice (Boulder, Col.: Westview, 1988), pp. 192–194.

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163. On the difficulties of coordinating agency actions in “shared regulatory space,” see Jody Freeman and Jim Rossi, “Agency Coordination in Shared Regulatory Space,” Harvard Law Review 125 (2012), p. 1131. 164. See Tiffany Stecker, “GHG Rule ‘Tailored’ to Suit Administration, Says Industry,” ClimateWire (1 March 2012), online at http://www.eenews.net/climatewire/ 2012/03/01/6. 165. The Clean Air Act Amendments of 1990 directed EPA to develop “nonregulatory” measures for reducing CO2 emissions in a section that was never codified. See A Legislative History of the Clean Air Act Amendments of 1990, 103d Cong., 1st Sess., S. Prt. 103–38, Vol. 2, pp. 2776–2778. Without more specific guidance, EPA’s attention drifted elsewhere. 166. See U.S. EPA, Final Rule: Mandatory Reporting of Greenhouse Gases, 74 Fed. Reg. 56260 (2009). 167. See U.S. EPA, Final Rule: Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31514, 31516–17 (2010). 168. Lisa Heinzerling, after a stint at EPA with climate change, argued almost as much. See Lisa Heinzerling, “Climate Change at EPA,” Florida Law Review 64 (2012): 12.

Jamison E. Colburn Dickinson School of Law Lewis Katz Building Penn State University University Park, Pennsylvania 16802 United States

Contemporary Pragmatism Vol. 9, No. 2 (December 2012), 241–254

Editions Rodopi ©2012

Law as a Democratic Means: Deweyan Jurisprudence and Democratic Experimentalism Brian E. Butler

I investigate law and legal thought in relationship to Dewey’s demand that within a truly democratic society the ends as well as the means of a democratic society must be democratic. I outline a conception of law that is a democratic means to the greater end of democratic society. This contrasts with a conception of law, and especially constitutional law, as an antimajoritarian framework needed to set the ground rules for democratic procedures. First, a conception of Deweyan democracy is offered in combination with a conception of “democratic law” found in Dewey’s works. It is made more concrete through mapping of it on to the picture of constitutional practice offered by Michael Dorf and Charles Sabel. It is then used to give a description of what a Deweyan judge’s decision procedure would be like. This construction of a work-able conception of law as a democratic means can offer support for the possibility of a democratic society composed of democratic institutions “all the way down.”

1. Introduction In this paper I investigate law in relationship to Dewey’s demand that within a truly democratic society the means as well as the ends of society must be democratic. This demand, of course, goes against a standard conception of the rule of law, especially that of the rule of law under a constitutional government, wherein law and large parts of the legal system is seen as a framework which is, most essentially, outside of the democratic process, indeed is the non-democratic foundational means that sets the game rules for the democratic ends and procedures that it makes possible. Indeed, this very standard conception of law is that of a system that gives, necessarily, final decision making authority to a professional judiciary, a judiciary following rules set down by a duly ratified constitution, a constitution enacted with the express intent that its ruling framework would serve as a limitation upon the otherwise potentially dangerous if

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uncontrolled excesses of democratic passions. This conception of law seems to reinforce the idea that democracy ultimately rests, necessarily, upon the use of nondemocratic means. If correct, such a claim is damning to Dewey’s demand for democratic means as well as ends in the structuring of a truly democratic society. In this paper I aim to outline a plausible and workable conception of law as a democratic means. If this can be accomplished, not only will the radical nature of Dewey’s conception of law become manifest, but also the limitations and quite possibly unfounded dogmas of standard conceptions of law and its relationship to democracy will be exposed. In order to do this, the following steps will be followed. First, a conception of Deweyan democracy will be offered in combination with a parallel ideal of “democratic law” found scattered throughout his works. Then an attempt to live up to the aims of a truly democratic legal procedure, one that satisfies Dewey’s demanding requirement that democratic ends can be ultimately furthered only through democratic means, will be made concrete through the use of Michael Dorf and Charles Sabel’s article “A Constitution of Democratic Experimentalism.”1 Their article offers a Dewey and pragmatism inspired picture of law as a democracy enhancing and experiment encouraging democratic social institution. From this conception of law a decision making model for the Deweyan judge will be analyzed. This is necessary because of a critique of Dewey’s legal theory offered by Richard Posner. Dewey’s legal theory, Posner claims, is too abstract and top-down to be useful for a judge confronted with the need to come to a judicial decision in a real-world case with all of its concrete particulars. If correct, and universalizable to any attempt to construct a Deweyan conception of law, such a critique would be fatal to a Deweyan picture of law as a democratic means. It will be argued that the system that Dorf and Sabel offer goes a long way in answering Posner’s objection. If successful, the construction of an alternative conception of law as a democratic means will offer strong support for the plausibility of the Deweyan aim of creating a society where democracy is practiced throughout all of its institutions, that is, “all the way down.” 2. Deweyan Democracy and the Concept of “Law” While Dewey did not write a major work on legal theory, there are multiple works in his oeuvre that when read together offer a consistent philosophy of law. Indeed, the works where Dewey discusses law actually combine to form a strong and coherent picture of law, one that maps quite nicely on to his conception of democracy. In outline, the following aspects are most important to note. First, and most importantly, for Dewey democracy “must affect all modes of human association.”2 This, of course, is the requirement that society be democratic “all the way down” that raises such a problem for standard conceptions of law. And this is a requirement that Dewey emphasizes. Indeed, Dewey holds that,

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“democracy can be served only by the slow day to day adoption and contagious diffusion in every phase of our common life of methods that are identical with the ends to be reached and that recourse to monistic, wholesale, absolutist procedures is a betrayal of human freedom no matter in what guise it presents itself.”3 Of course, if one takes this requirement seriously, then Dewey must accept that law, if it is to be an acceptable system of governance, must be democratic in its means. Quite obviously, though, this would require a conception of law and legal practice significantly different from those that currently prevail. Indeed, to put it in somewhat stark terms, a system that allocates final decision making and expressly antimajoritarian authority to an ultimately unaccountable and oligarchic judiciary following rules originating from the “dead hand” of the past (as does the United States federal court system in relationship to the Constitution) seems to exemplify and require an allegiance to undemocratic means even if the aims are democratic, or at least representative, ends. 4 This is not a system where the ends and means of society are democratic and therefore for Dewey must be seen as a betrayal of human freedom under the guise of a false conception of necessity. Of course, Dewey’s demanding conception of democracy has often been critiqued for being too procedural, and therefore not substantive enough to support any real democratic aims. It has also been, to the contrary, described as being too substantive, and therefore so comprehensive in Rawlsian terms as to require coercive practices. Further, Dewey has also been read as too conservative by some and too radical by others.5 These are all important issues if his conception of democracy is plausible at all. This paper is focused upon a more specific and yet more central issue in Deweyan democracy: can a “democracy all the way down” conception of law be offered that is plausible and workable? This is important because the other critiques are only useful if such a conception of law as a democratic means is available. Otherwise a Deweyan conception of democracy is dead in the water. So whether or not this first “all the way down” requirement is possible sets the major challenge of this paper. Certainly this requirement is not satisfied with a democracy that rests upon the necessary use of standard conceptions of law. The following factors, therefore, set up the more detailed description of law as a democratic means that are required in order to fully satisfy this first and most general requirement. The second factor is a pluralistic set of values and a concomitant decentered conception of social institutions. Indeed, Dewey claims that by having plural and decentered institutions, as well as a form of life that practices democratic social habits, there are made available multiple avenues of communication that allow not only for information to be developed and pooled but also for alternative solutions to be imagined, proposed and tried. It is striking that there are plenty of examples in Dewey’s writings where he applies this same requirement, his same demand for decentered and pluralist institutions, to law as well. For instance, Dewey critiques Austin’s legal positivism because it requires a much more centralized, unitary and hierarchical conception of

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sovereignty than Dewey thinks is necessary. Dewey claims that just the opposite is the case – that a less centralized and hierarchical view of sovereignty is more accurate and avoids the unfortunate result, following from adoption of Austin’s positivism, of an over-fixation on a special professional and intellectualized source of law. If this centralized picture of law is avoided, Dewey notes that then one can see law as emanating from diverse sources within society. 6 In fact, Dewey thinks that this decentralized conception of law should be advanced so as to encourage a greater “decentralization of law-making bodies and the development of quite new organs of lawmaking.”7 This alternate decentered and pluralist conception of law does not share with the legal positivist the search for proper legal pedigree, but rather finds law emanating from “the minor laws of subordinate institutions – institutions like the family, the school, the business partnership, the trade-union or fraternal organization.”8 Dewey also allows that laws could come from the factory or the church. This is emphatically a disaggregated, pluralistic and “bottom-up” conception of law, one that if accepted is quite compatible with the idea of a decentered and pluralist conception of democracy. A third aspect of Deweyan democracy is his quite unique concept of “public” or, more specifically, “publics.” Dewey defines a public in functional terms. A public is created when social consequences that affect people beyond the immediate group are noted and found in need of social control. Political democracy, therefore, comes in to being where there is a recognized need to control the externalities produced by social activity. But these externalities are often unique to specific activities at specific times and places. For instance, as technology changes so do the types of activity engaged in as well as the results caused by the processes. Because such problems are in constant change, states need to be continuously re-made, and publics need to be continuously formed and re-formed.9 This is a radical position to hold. This comes out most clearly when Dewey concludes from this that the idea of state is equally unique to its specific function. Therefore when it comes to defining a “state,” “The only statement which can be made is a purely formal one: the state is the organization of the public effected through officials for the protection of the interests shared by its members.”10 It is telling that Dewey’s example of a falsely reified and naïve hope for such a once-and-for-all solution to democracy is the imposition of constitutions “ready-made” upon states with diverse needs and with divergent publics. 11 In fact, the methodology of defining the state in functional terms in relation to diverse public needs is largely paralleled in Dewey’s characterization of law. For example, Dewey writes that law “cannot be set up as if it were a separate entity, but can be discussed only in terms of the social conditions in which it arises and of what it concretely does there.” 12 And, just as in the case of the definition of state, Dewey’s functionalist understanding of law leads him to note that the use of the word “law” to mean something with any unified core or essence is “rather dangerous.”13 So just as there are various publics and multiple

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types of states, it seems that there are for Dewey plural and evolving systems labeled “law” with vastly differing rules, practices and goals. All can be properly thought of as law, and none of them can be critiqued as lacking through an appeal to any missing “rule of law” essence. So as in the first two factors, Dewey’s third aspect of democratic governance maps nicely on to his conception of law. Indeed, his functional conception of democracy fits quite well with his functionalist critique of ready-made or dogmatic constitutionalism and “rule of law” essentialism. Finally, the fourth factor that Dewey demands of democratic government is that it rests upon experimental intelligence. Indeed, for Dewey democracy and intelligent inquiry often seem to be treated as synonymous. Certainly, it is a commonplace that for Dewey scientific method and democratic habits are mutually supporting. It is beyond the scope of this paper to investigate these claims in relationship to democracy writ large. But, in the realm of law, Dewey makes the same demand. And once accepted, the demand that law use experimental intelligence rules out other options; indeed it rules out options that have long been dominant in legal thought. For example, Dewey argued that this rules out any recourse to natural law. This is because natural law searches for a foundation that is antecedently given, and, therefore, a judge or any other legal practitioner that follows a natural law strategy cannot accept the constructive and forwardlooking aspects of inquiry and experimental intelligence. To the contrary, law as experimental social inquiry “demands that intelligence, employing the best scientific methods and materials available, be used to investigate, in terms of the context of actual situations, the consequences of legal rules and of proposed legal decisions and acts of legislation.”14 Here it is important to note that Dewey’s conception of “best scientific methods” includes historical investigation. Of course an evolutionary conception of law and the concepts utilized with any legal system must be informed by an historical awareness. An example of the way historical analysis can help inform legal decision making that Dewey found particularly interesting was in relationship to the legal concept of corporate personality. Dewey noted the strange fact that in maritime law ships were regarded as persons.15 He concluded from his research that because legal personhood was a concept that came with a long history of metaphysics and interesting yet potentially distorting idiosyncrasies, legal decisions resting upon the concept of person could be manipulated and used for ulterior purposes. In response to the problem he argued that the best way to utilize the concept of person in law, and the best way to make the concept less metaphysically loaded and legally obfuscatory, was to adopt a consequentialist conception. That is, openly define legal person in terms of the consequences desired.16 At the very least this strategy would bring under scrutiny any claims that could not be supported with empirical evidence. Another example where Dewey pointed towards a more experimental conception of law is shown in his analysis of the traditional judicial opinion.

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Dewey found the formalist picture of legal reasoning and legal logic, as exemplified in judicial opinions, to be offering an overly static and overly certain picture of legal analysis. According to him, as opposed to the active inquiry required of legal practitioners, judicial opinions often substitute false forms “rigorous in appearance and which give the illusion of certitude.” 17 The quest for certain justification, though, is for Dewey patently illusory. Here it is important to note that Dewey is arguing for a more experimental and forwardlooking type of legal analysis. That is, though he critiqued the overly formal style of analysis exemplified in standard judicial opinions, he was not by any means advocating a type of antiformalism but rather a careful attachment of experimental method to empirical results. Dewey’s conception of experimental democracy maps on to his various statements in legal philosophy quite nicely. Further, Dewey’s conception of democracy “all the way down” also applies, and is satisfied, by his conception of law. In addition, the concept of law outlined above also is pluralistic, decentered, conceives of publics as constructed in relationship to specific issues and rests upon experimental intelligence. On the other hand, as outlined above, Dewey’s conception of law might be thought to be much too abstract, indeed even quite naïve. If this is so, then Dewey’s theory could be read as an aspirational yet largely unhelpful “top-down” theory unable to be translated into actual real-world institutions. This critique of Dewey’s theory of law has been offered most effectively by Richard Posner in his book, Law, Pragmatism, and Democracy.18 In the next section I will outline Posner’s critique and, further, argue that Dorf and Sabel’s description of a system of democratic experimentalism offers a convincing response to just such a critique. 3. The Jurisprudence of Democratic Experimentalism Richard Posner, while offering his own law and economics inspired version of legal pragmatism, cites Dewey as an honored predecessor to his own selfdescribed more tough-minded and skeptical version of jurisprudence. Specific to Dewey’s legal thought, Posner argues that Dewey was correct to emphasize forward-looking results and that Dewey’s critique of the false certainty shown in judicial opinions is helpful. But Posner also argues that Dewey’s own analysis exemplifies “top-down reasoning” and “a paradoxical lack of engagement with concrete problems and real institutions.”19 Posner’s critique actually has two important aspects to it. First is the claim that Dewey’s philosophy of law is so general as to give no real direction to a public that wanted to bring about just such a law of democratic means. Second, and actually a more specific version of the first critique, Posner argues that a Deweyan judge would be ineffectual, indeed in his words would be forced to “meander” because the implications and demands of Dewey’s philosophical stance are vague, indeterminate and therefore unable to offer a useful set of guidelines from which a judge could come to an acceptable legal decision.

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It must be admitted that as outlined above. Dewey’s theory seems particularly susceptible to Posner’s critique. Further, if Posner’s critique stands, not only is a Deweyan conception of law properly questioned, but also Dewey’s more demanding picture of true democracy as being exemplified only where all social institutions are democratic in form is rendered highly questionable as well. That is, not only are we brought back to a picture of law as a non-democratic and yet necessary means to a democratic end, but also the whole aspirational hope for a Deweyan democracy might be exposed as only aspirational and truly naïve. My argument in this section is that Michael Dorf and Charles Sabel in “A Constitution of Democratic Experimentalism” construct a much more concrete outline of legal practice that fulfills the Deweyan requirements listed above for a democratic law and that also responds to and diffuses the two criticisms Posner offers. Dorf and Sabel’s democratic experimentalism is offered as a more experimental version of law that could be grafted on to the already existing organizational structure of United States government. Further, they offer their system as an evolutionary redescription of institutional purposes inspired by insights from the pragmatist tradition. In particular, they highlight four insights from the pragmatist tradition that inform their project. First, their system must be able to handle and make use of the “reciprocal determination of means and ends.” According to them, any experimental system of government must allow for this because the ubiquity of unintended consequences of any institutional action makes it impossible to understand aims without an analysis of the costs that are incurred in pursuit of it.20 Second, they note the importance of doubt as a spur to creativity. Third, Dorf and Sable emphasize that inquiry is inherently social, indeed that our understanding of our deepest and most private projects “depends on how others interpret and react to them.”21 And, fourth, they highlight the fact that as a theoretical framework, that is, “As a theory of thought and action through problem solving by collaborative, continuous reelaboration of means and ends, pragmatism suggests that advances in accommodating change in one area often have extensive implications for problem solving in others.” 22 The system of democratic experimentalism that Dorf and Sabel construct relies upon the same insight that Dewey’s analysis of law rested upon – namely the idea that there is no reason to believe that “law” has an essential set of attributes or sources. Because of this there is the ability to look towards a greater set of social resources for possible models of democratic yet ostensibly legal governance. For instance, Dorf and Sabel look, somewhat counterintuitively, to contemporary aspects of industrial management for possible options. They argue, in fact, that because markets are so complex and fast changing, prices cannot be utilized as fully reliable information. Therefore, competitive firms have had to creatively utilize other ways of processing and creating information in order to survive. Specifically, such firms have adopted the potentially democracy-enhancing methods of federated structures and have utilized benchmarking, simultaneous engineering and learning by monitoring strategies.

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Benchmarking entails “An exacting survey of current or promising products and processes which identifies those products and processes superior to those the company presently uses, yet are within its capacity to emulate and eventually surpass.”23 Simultaneous engineering entails a continuous adjustment of means and ends through intimate collaboration among the producers. Further, because “the exchanges of information required to engage in benchmarking, simultaneous engineering, and error correction also allow the independent collaborators to monitor one another’s activities closely enough to detect performance failures and deception before these latter have disastrous consequences,” this type of collaboration encourages “learning by monitoring.”24 In this type of organization, discussion becomes central in the pooling of problems, information and perspectives as well as the development of plans. Further, as described, this type of organization yields flexibility in purpose and output as well as creates self-reinforcing habits of inquiry and transparency. Dorf and Sabel argue that a political system built using the same strategies could actually be democracy enhancing along the lines envisioned by Dewey. In the specifically political system of democratic experimentalism the roles of the various branches of government remain somewhat distinct, but their functions are reconceived without attachment to preconceived essences. Government activity would be presumptively local. Congress would encourage subunits to experiment as to means (and to a lesser but not insignificant extent to ends) on the understanding that the goals of the experiments be publicly declared and the results measured and reported so they can be refined, critiqued and information can be pooled. Indeed, one of congress’s most important roles would be to ensure that information accrued from local experimentation is made available across domains, therefore creating a universally accessible information resource of successful and unsuccessful regulatory choices. Administrative agencies under this schema would be chiefly charged with assisting subunits in experimentation as well. More specifically, with congressional authorization they could set regulatory standards, often in the form of rolling best-practice rules, and encourage effective benchmarking. Citizens continue to evaluate their representatives through voting in general elections, but elections could be informed through the use of benchmarking information. Indeed, the same governmental process that encourages the use of benchmark information encourages the development of a political record that informs voter decisions. Further, citizens in groups analogous to Dewey’s publics would serve a more active stakeholder role on various governance councils created to deal with concrete local, regional and global issues. (This is the area where the federated aspect of their system is most clear.) Because of this, “Experimentalism links benchmarking, rulemaking, and revision so closely with operating experience that rulemakers and operating-world actors work literally side by side – but, to repeat, in plain view of the public – and thus, largely overcome the distinction between the detached staff of honest

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but imperfectly informed experts and the knowledgeable but devious insiders they regulate.”25 Most significant for this paper, the conceptualization of the role of the courts also changes in this system of democratic experimentalism. Courts function to make sure that the experiments fall within the broad aims authorized by Congress, respect the rights of citizens and are performed in a properly systematic and transparent manner. Communities get freedom to experiment, but in return they must develop a record of options and choices considered, as well as results of their choices and further responses. A court would look at the possibilities and results revealed by the process in order to decide whether the process has been effectively implemented. A party challenges governmental choices in court by pointing out arguably better choices revealed by other experiments in governance. As Dorf and Sable put it, “In this way the vindication of individual rights encourages mutual learning and vice versa, and judges’ discretion in applying broad principles is schooled and disciplined by actual experimentation with possibilities they could never have imagined.”26 In this conception of judicial review, courts review the reasons given for choices and how closely the reasons offered can explain the regulatory choices made. The virtue of this process is that it creates data so that, as opposed to current courts that either try to ignore empirical aspects of decision as much as possible or pretend that empirical questions are really matters of law, the democratic experimentalist court will have an experimentally informed record to work from. The judicial model of decision-making, in fact, evolves from that of impartial or disinterested referee and legal concept “determinator” towards that of a participant in a democratic project of policy adoption. This might be thought of as a model of judge as project facilitator as opposed to game umpire. Does the jurisprudence of democratic experimentalism satisfy Dewey’s requirements in regards to a properly democratic conception of law? And does it do so in such a way as to diffuse Posner’s critique? How about the requirement that democratic government must utilize only democratic means? The jurisprudence of democratic experimentalism creates a system where the judge is in service of facilitating democratic processes not as external to the process but rather as in integral and active participant. That is, as opposed to being thought of as a disinterested rule interpreting and applying umpire that makes decisions as to what is constitutive of democracy, in the system of democratic experimentalism the judge is a fellow inquirer in something closer to the role of project supervisor. In this sense much more of the interpretive process of legal decision making is decided via the more democratic means of active stakeholder activity. Significantly, a specific and concrete role for the court system and the judge is described. And this system as described both ensures that the judge has more data, a more developed record, to work from as well as a less central place in the process, thus alleviating some of the Posnerian worry that the Deweyan judge would unhelpfully meander.

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Certainly the second aspect of Dewey’s philosophy of law is largely satisfied. Under democratic experimentalism, plural and decentered experiments in governance are explicitly encouraged. Government is preemptively local and the whole system is conceptualized so as to encourage bottom-up learning. The court system is concretely described as a locale for offering another guarantee of deliberative and experimental transparency, and the judicial role is distinctly conceptualized as one of enabling and ensuring that the other branches are performing their specified functions within proper limits. Third, the whole system rests upon an express functionalism in that specific aims are to be transparently aimed at and regulation is to be evaluated for its instrumental effectiveness by comparing it to benchmarked alternatives. Finally, the fourth requirement of experimental intelligence is purposefully designed into the whole system. Indeed, democratic experimentalism, with its explicit engagement with the reciprocal determination of means and ends, allows the court to be part of a democratic and evolutionary learning system, a system that uses the past as a repository of funded knowledge rather than as a set of obligatory game rules requiring allegiance through some amorphously defined type of moral obligation. So Dorf and Sabel’s system of democratic experimentalism offers a conception of law that largely satisfies Dewey’s demanding requirements for democratic governance. Further, their conception of law greatly reduces the power of Posner’s critique. Not only do they fill out in great detail the democratic aspects of an experimentalist court, they also note that work in the area has already identified courts already functioning in ways compatible with this conception of law. Dorf and Sabel list examples from family support services, community policing, military procurement, traffic administration, forest service management and nuclear power and environmental regulation.27 Another example is offered in “Drug Treatment Courts and Emergent Experimentalist Government,” wherein Dorf and Sabel argue that drug treatment courts model experimentalist virtues. 28 An often-cited example is the Habitat Conservation Plan response to the Endangered Species Act.29 And Judge Walker’s recent decision in Perry v. Schwarzenegger, 704 F. Supp. 2d 92 (N.D. Cal 2010) might serve as an example of a legal decision that is empirically robust and that therefore shows how a court can engage in empirically grounded legal analysis.30 Finally, in a forthcoming article, Sabel and William Simon note examples of “contextualizing regimes” that also have an experimentalist structure in response to areas where uncertainty and evolutionary response is necessary.31 These examples help support the conclusion that the Deweyan judge, when informed along the lines of democratic experimentalism as developed by Dorf and Sabel, has sufficient tools, or can develop them within the experimentalist process, for effective legal decision making. Not only that, but the tools offered promise to greatly enhance the reliability of decisions because of an explicit instrumentalism attached to the greater set of data available to the

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judge. That is, a Deweyan judge will be utilizing the information gathered in the process of benchmarking and learning by monitoring and therefore will have a record available that allows the court to face an empirically informed set of options, reasons for specific choices, and a description of stakeholders included in the deliberations. Further, the judge’s role, when thought of as closer to project supervisor than disinterested umpire, does not entail the same pressure to come up with “once and for all” decisions that are determinate in relation to empirically messy and normatively controversial issues, but to the contrary gets to put most of the pressure for decision back onto more democratic venues and procedures. The conclusion of this section is that Dorf and Sabel’s democratic experimentalism offers a description of democracy and law that helps make concretely imaginable how Dewey’s demands for a democracy that goes all the way down could be satisfied in the realm of law. Further, the details of the system outline not only a more democratic conception of law, but also one that is concrete enough to diffuse Posner’s criticism. Indeed, it might be the case that Posner’s criticism is fair when limited to Dewey’s own writings on law. But when supplemented and informed by the work of Dorf and Sabel, Deweyan jurisprudence, the jurisprudence of democratic experimentalism, becomes a plausible and more democratic option when compared to other conceptions of legal practice.32 4. Conclusion I have argued that supplementing Dewey’s theory of democracy and law with the institutional structure outlined in Dorf and Sabel’s democratic experimentalism offers an attractive and sufficiently detailed blueprint for a legal regime that is plausibly described as democratic all the way down. Therefore, law can be thought of as a properly democratic means to be used in pursuit of a thoroughly democratic society. If this is the case, then Posner’s critique of Deweyan jurisprudence has been largely reduced in power. This is a significant result. But the details of democratic experimentalism offer further virtues – one being that law is also reconceptualized as a learning machine whereby data is produced through proper use of the procedure, as opposed to a realm where specifically “legal reasons” must be used and a type of legal purity must be policed (for instance think of legal theories that find policy matters to be beyond or contrary to proper legal argument). A second virtue of thinking of law in this manner is that it appears from this that if law is thought of as an experimental and constructive realm, a realm more like a collective engineering and coordination problem – where a public tries to solve a specific social problem – than a process of proper “once and for all” limit and restraint, then issues of obligation to precedent, interpretation of legal text, etc., can each become just another issue in the everyday coordination of projects in the world. Certainly there are interpretive issues in relationship to any design project, but these will

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be solved mostly in relationship to the acknowledged aims of the project and not through some appeal to specifically legal essences with a specifically legal methodology. This brief critique raises the possibility that many of the ideals of contemporary jurisprudence are actually specific to certain possibly quite parochial times and places. In Rorty’s wording, they are the result of a set of historical contingencies. Further, the repetitive discourse and standardized moves that these jurisprudential battles are fought out within might be limiting our search for other more democratic possibilities. Might these comfortable ideas of law have been invented in times where an experimental outlook was frowned upon and where information pooling was too costly (or even threatening)? Might it be the case that many of the cliché “rule of law” virtues often glorified in legal theory actually made virtues out of earlier institutional limitations, limitations that now can be seen properly as vices to experimentally overcome? If this is possibly the case, then philosophy of law, especially a pragmatic philosophy of law that is founded upon a forward-looking, historically informed, pluralist and experimentalist methodology, needs to emphasize more pluralist and empirical benchmarking of its own, and imagine more possibilities. From this perspective the above outline of an experimentalist Deweyan system of law as a democratic means can be seen as a redescriptive enterprise in service of the goal of imagining “law” outside of the limits that are commonly accepted in standard rule of law rhetoric.

NOTES 1. Michael Dorf and Charles Sabel, “A Constitution of Democratic Experimentalism,” Columbia Law Review 98 (1998), pp. 267–473. See also William H. Simon, “Toyota Jurisprudence: Legal Theory and Rolling Rule Regimes,” in Law and New Governance in the EU and the US, ed. Grianne De Burca and Joanne Scott (Oxford: Hart Publishing, 2006), pp. 37–64. 2. John Dewey, The Public and Its Problems, in The Later Works of John Dewey, vol. 2, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1984), p. 325. 3. John Dewey, Freedom and Culture, in The Later Works of John Dewey, vol. 13, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1988), p. 187. 4. Michael Sullivan in Legal Pragmatism: Community, Rights and Democracy (Bloomington: Indiana University Press, 2007), gives an excellent overview of legal theories constructed to show how all of these seemingly anti-democratic aspects of constitutional law actually can be used to protect and further democratic ends. 5. Phillip Dean, in “A Call for Inclusion in the Pragmatic Justification of Democracy,” Contemporary Pragmatism 6 (2009), pp. 131–151, offers a clear analysis of both sides of this debate. 6. John Dewey, “Austin’s Theory of Sovereignty,” in The Early Works of John Dewey, vol. 4, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1971), p. 87.

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7. John Dewey, “Review of H. Krabb’s The Modern Idea of the State,” in The Later Works of John Dewey, vol. 17, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1990), p. 102. 8. Dewey, “Austin’s Theory” at p. 87. 9. For good discussions of Dewey’s idea of a public see Eric MacGilvray, “Dewey’s Public,” Contemporary Pragmatism 7 (2010), pp. 31–47 at p. 33, and James Bohman, “Participation through Publics: Did Dewey answer Lippmann?” Contemporary Pragmatism 7 (2010), pp. 49–68, at pp. 50, 61. See also William H. Simon, “New Governance and the Transformation of Law: Symposium Afterward,” Wisconsin Law Review 2010 (2010), pp. 727–736, at pp. 727–729, for a discussion of Dewey’s conception of publics in relationship to new governance. 10. Dewey, The Public, pp. 266–256. 11. Ibid., p. 264. 12. Ibid., p. 117. 13. Ibid. 14. Ibid., p. 122. Of course placement of experts in this system must be democratic as well. See Melvin L. Rogers, “Dewey and His Vision of Democracy,” Contemporary Pragmatism 7 (2010), pp. 69–91, at 80–81. 15. John Dewey, “Anthropology and Law,” in The Early Works of John Dewey, vol. 4, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1971), p. 40. 16. Ibid., p. 38. 17. John Dewey, “Logical Method and the Law,” in The Middle Works of John Dewey, vol. 15, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1979), p. 73. 18. Richard A. Posner, Law, Pragmatism, and Democracy (Cambridge, Mass.: Harvard University Press, 2003). 19. Ibid., p. 118. 20. Dorf and Sabel, “A Constitution,” pp. 284–285. 21. Ibid., p, 285. 22. Ibid., p. 286. 23. Ibid. 24. Ibid. 25. Ibid., p. 288. 26. Ibid., p. 389. 27. Dorf and Sabel, “A Constitution,” family support services (p. 324), community policing (p. 327), military procurement (p. 332), traffic administration (p. 357), forest service management (p. 364) and nuclear power and environmental regulation (pp. 371–373). 28. Michael C. Dorf and Charles F. Sabel, “Drug Treatment Courts and Emerging Experimentalist Government,” Vanderbilt Law Review 53 (2000), pp. 831–883. See also Michael C. Dorf, “Legal Indeterminacy and Institutional Design,” New York University Law Review 78 (2003), pp. 875–981. 29. See, for instance, Bradley C. Karkkainen, “Adaptive Ecosystem Management and Regulatory Penalty Defaults: Toward a Bounded Pragmatism,” Minnesota Law Review 87 (2003), pp. 943–998. 30. I thank Govind Persad for this example. 31. Charles F. Sabel and William H. Simon, “Contextualizing Regimes: Institutionalization as a Response to the Limits of Interpretation and Policy Engineering,” Michigan Law Review, forthcoming

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32. In order to avoid the impression that democratic experimentalism is being naively embraced as without potential problems of its own, the following are some essays that are critical of its stance: Lisa T. Alexander, “Stakeholder Participation in New Governance: Lessons from Chicago’s Public Housing Reform Movement,” Emory International Law Review 16 (2009), pp. 117–185; Benjamin J. Beaton, “Walking the Federalist Tightrope: A National Policy of State Experimentation for Health Information Technology,” Columbia Law Review 108 (2008), pp. 1670–1717; Christie Ford, “New Governance in the Teeth of Human Frailty: Lessons from Financial Regulation,” Wisconsin Law Review 2010 (2010), pp. 441–487; Alana Klein, “Judging as Nudging: New Governance Approaches for the Enforcement of Constitutional Social and Economic Rights,” Columbia Human Rights Law Review 39 (2008), pp. 351–422; and David A. Super, “Laboratories of Destitution: Democratic Experimentalism and the Failure of Antipoverty Law,” University of Pennsylvania Law Review 157 (2009), pp. 541–616.

Brian E. Butler Department of Philosophy University of North Carolina, Asheville One University Heights Asheville, North Carolina 28804-8520 United States

Contemporary Pragmatism Vol. 9, No. 2 (December 2012), 255–261

Editions Rodopi ©2012

Reflections on Democratic Experimentalism in the Progressive Tradition Mark Tushnet

By outlining the history of administrative law from the Progressive era to the present, this essay suggests a genealogical connection between Dewey’s pragmatism and democratic experimentalism. Democratic experimentalism is rooted in the Progressive paradigm of an administrative state guided by expert judgment but responds to the ossification of the U.S. administrative state. Connecting democratic experimentalism to Progressivism provides the background for some speculations about the politics that might be needed for democratic experimentalism to have successes equivalent to those of Progressive administrative law.

From the perspective of a scholar of U.S. public law and its history, democratic experimentalism can be seen as the next step in the development of the Progressive vision of administrative law.1 And, because John Dewey was a Progressive in his politics, it is not surprising that scholars can connect democratic experimentalism to Dewey’s pragmatism. Dewey’s pragmatism provided an informal philosophical backdrop to the Progressives’ policy proposals. These Reflections suggest a genealogical connection between Dewey’s pragmatism and democratic experimentalism, not a conceptual one.2 They begin with an outline of administrative law’s history from the Progressive era to the present, with the aim of showing how democratic experimentalism is rooted in the Progressive paradigm of administrative law and how it responds to some of the difficulties faced by contemporary administrative law. 3 That outline provides the background for some speculations about the politics that might be needed for democratic experimentalism to have successes equivalent to those of Progressive administrative law. Progressives began with the observation that the institutions of governance in the late nineteenth and early twentieth century could not be accounted for within the traditional separation-of-powers conceptualization. Without any deep theorizing supporting the administrative agencies had developed incrementally to the point where, Progressives argued, they had to be understood as a new “fourth branch” of government. Progressives offered a political theory for the modern administrative state.

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Progressives defended the development of that state by pointing to the inadequacy of traditional governance mechanisms available to deal with rapid social change, notably immigration, and technological change, notably the development of mass production industry linked by then-modern transportation networks, in the late nineteenth century.4 Legislatures could not deal with these problems because change was too swift for the cumbersome legislative process to respond: By the time legislators knew enough to deal with a perceived problem, the problem needing solution had changed. And legislatures were too political, dominated by the very industries that they ought to regulate or by political machines that gained support from recent immigrants by providing their supporters but not their opponents with the kinds of social provision that ought to be offered generally and systematically. Courts could not deal with the problems either, because they saw only those parts of the problems that happened to be presented to them in litigation, and that fit within the traditional categories of the common law, which could adapt but only incrementally, to social and economic change. The Progressive solution was the administrative agency, staffed by experts in specific fields and subject to only loose political control through the appointment of agency heads who themselves were expected to have some degree of expertise. The experts could deploy scientific knowledge in the service of regulation; their expertise would allow them to move nimbly in response to technological change; their loose connection to politics would allow them to implement a coherent vision of the public interest without regard to the kinds of immediate political concerns that affected legislators. Courts in the United States were initially wary of the new administrative state.5 They were concerned that the pursuit of scientific solutions to social and economic problems would invade long-standing rights protected by the common law and the Constitution. Over the first decades of the twentieth century an accommodation was worked out: The courts would defer to administrative agencies as long as the agencies adhered to procedures that were recognizably similar to those used in the courts. Yet the courts understood that the advantages sought through agencies would be lost were they fully judicialized, and tolerated significant departures from traditional adjudicatory modes. 6 The administrative state flourished under this dispensation, but by the 1940s it became clear to all that the Progressive claim that agencies could make decisions pursuant to disinterested and largely apolitical scientific criteria was insupportable in its strongest form. The response was two-fold. First, administrative procedures became somewhat more judicialized, under the Administrative Procedure Act (APA) of 1946. Agencies had to provide the general public with notice of the rules they proposed to adopt, had to give the public an opportunity to comment on those rules, and, importantly, had to respond to the substantial arguments made in the comments for altering or even abandoning the proposal and had to explain why they decided not to develop a new rule in response to reasonable requests for that action. Over the next decades courts and

Reflections on Democratic Experimentalism in the Progressive Tradition 257 agencies converted these requirements into the “hard look” approach to administrative rule-making, imposing substantial obligations on administrative agencies, especially in the very areas of novel social and economic problems – such as environmental law and the regulation of workplace health and safety – as to which the Progressives claimed the greatest advantages for agencies. Second, the political processes that had operated in the legislature and displaced by agencies were folded into the agency processes themselves. In part, the motivation was to overcome a specific pathology, agency “capture,” by the industries they regulated. Political economists offered a simple explanation for agency capture: The regulated industries cared a great deal about what the agencies would do to them, and therefore invested in political influence over the appointment process. In contrast, no ordinary citizen would benefit much from any specific regulatory decision, and invested little political energy in attending to what agencies did or who ran them. In the generation after the APA’s enactment, courts and agencies responded by expanding the range of groups entitled to participate substantially in the agencies’ deliberations and, again importantly, entitled to seek judicial review of agency action. The effect of this expansion was to draw the political bargaining that had previously occurred in the legislature into the agencies. Yet, these developments came to reproduce the problems that had led Progressives to support the administrative state in the first place. In the jargon, agencies became “ossified.” They could not respond quickly to rapidly changing technologies: By the time the notice-and-comment process and the subsequent judicial review concluded, agency regulations were outdated and pointless. Against this background, democratic experimentalism can be understood as a new Progressive response to the kinds of institutional difficulties that the first generations of Progressives identified. The contemporary versions of rapid social and economic change are globalization, developments in technology, and multiculturalism. Ossification means that agencies could not respond adequately to social and economic change, and democratic experimentalism was a program for restructuring the administrative state – sometimes within existing agencies, sometimes outside them – to promote the public interest. Even the scientific impulses of Progressivism could be found in some aspects of democratic experimentalism, though chastened by several generations of experience with bloated claims sometimes made for the role of economics, psychology, other social sciences, and sometimes even the physical sciences in providing solutions for social and economic problems. We can see the connection between Progressivism and democratic experimentalism in a recent article by Charles Sabel and William Simon.7 They describe “contextualizing regimes,” which they define as “institutions that structure deliberative engagement by stakeholders and articulate the resulting understanding” of “indeterminate” legal language. As they note, this is a description of administrative agencies using contemporary terms rather than the terms of Progressive discourse.8 Their description of the attractive properties of

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contextualizing regimes echoes administrative law as well. The desiderata are transparency, inclusion, fair process, and continuous self-assessment. The APA’s goals included fair processes and transparency, as then understood. The development of administrative law through the 1960s offered new modes for the inclusion of affected constituencies. Unsurprisingly, some of Sabel and Simon’s language updates Progressive themes in the language of contemporary management studies, but underneath we can see the continuities with Progressivism. As presented by Sabel and Simon, democratic experimentalism innovates on the Progressive defense of administrative law in two ways, both of which we can understand as responses to regulatory ossification. First, they emphasize the legacy of American Legal Realism, a development in legal thought loosely connected to Progressivism but which ultimately undermined many of Progressivism’s presuppositions. Progressives defended the delegation of legislative, executive, and judicial authority to administrative agencies, on functional grounds. The judicially imposed accommodation between traditional constitutional law and administrative agencies attached a prefatory “quasi-” to each of these functions: Agency rules were quasi-legislative, their enforcement proceedings quasi-judicial. Further, the courts required that the delegations be cast in legal terms: The statutes delegating authority to agencies had to provide them with an “intelligible principle” to guide their actions. For Sabel and Simon, Legal Realism’s legacy was to show that the legal guidelines Progressives gave to administrative agencies were (inherently, not contingently) both normatively and instrumentally indeterminate. The delegations could not tell decision-makers what goals to aim for, why those goals were worth achieving, or even roughly how to achieve them.9 Progressive administrative agencies might learn from experience that some interventions worked better than others, but – its commitment to science aside – did not build that learning directly into their processes: Agencies might engage in new rulemakings or rescind old rules in light of experience, but they had no systematic processes for that reevaluation.10 Democratic experimentalism’s iterative processes encourage the regular reevaluation and rearticulation of goals– that is, their reformulation and transformation, largely I think through increasing precision and through greater accommodation of competing goals – as experience accumulates. Related but more general is the insistence on continuous self-assessment. This is a real innovation within administrative law. I believe we can understand it as a reasonably direct response to regulatory ossification. New institutions built into administrative law will force agencies to act. Those steeped in administrative law might see continuous self-assessment as an elaboration in light of regulatory ossification of agency obligations to respond to comments on proposed rules and to explain to those who ask that a new rule be made why they have decided not to do so. Ossification means that agencies will not make new rules or reassess old ones; continuous self-assessment means that agencies must do so in response to mechanisms built into the agencies.

Reflections on Democratic Experimentalism in the Progressive Tradition 259 With this as the background, I turn to some questions about democratic experimentalism, and specifically about the micro- and macro-politics that, it seems to me, are essential to its implementation in any substantial way. Students of administrative law tend to characterize ossification as a pathology. But, from another perspective, ossification is itself a substantive policy. Given rapid social and economic change, regulatory ossification is a policy of non-regulation. As such, it has political support from those who would otherwise be regulatory targets – new technologies, for example, and multinational corporations. What would it take to overcome that support? Sabel and his collaborators are adept at identifying glimmerings of democratic experimentalism in contemporary practices. As Justin DesautelsStein says in his contribution to this Symposium, proponents of democratic experimentalism “appear intent on presenting experimentalism as an administrative style that has already been planted,” though they “are sure to remind that experimentalism is in its infancy.”11 I am sometimes skeptical about their claims. The hints they find in those practices might be random variations, “noise” in the administrative process. Perhaps, though, there might be evolutionary processes through which those variations have survival value and spread through the administrative system. For present purposes I will assume that these glimmerings really do suggest the possibility that democratic experimentalism offers a solution to regulatory ossification. I believe it would be valuable to examine the political conditions conducive to the emergence of these glimmerings. Advocates for democratic experimentalism offer one possibility: widespread agreement that something must be done about a problem, and widespread agreement that existing regulatory techniques do not offer good solutions. 12 Importantly, the widespread agreement that something must be done includes important elements within the regulated constituencies, not merely victims and prospective victims of regulatory failures.13 The agreement that something must be done need not be universal, but it must be rather broadly shared. Regulatory ossification itself provides the reason for believing that existing regulatory techniques are inadequate. For myself, I hope that advocates for democratic experimentalism will supplement their descriptions of how some existing practices can be described in democratic experimentalist terms with political analyses identifying the conditions that conduced to the development and persistence of those practices.14 Progressivism was much more than an intellectual movement, of course. It was primarily a complex political movement. Progressives offered institutional innovations as solutions to immediate political problems, not as abstractly valuable. Some of them, though, sought some sort of deeper grounding for their proposals. Pragmatism served their purposes well. In this way, Dewey’s pragmatism fit into the larger Progressive political movement. A nagging concern about advocacy for democratic experimentalism is that democratic experimentalism is sometimes presented as a new technology of

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administrative law to deal with the new technologies of social and economic change, and worth adopting for that reason alone. In such presentations, democratic experimentalism resembles the earliest stages of theorizing about the modern administrative state: Having observed some new and interesting developments, the earliest Progressive theorists conceptualized and defended them in largely technocratic terms. As Progressivism became a broader political movement, technocracy’s role in grounding the Fourth Branch diminished though it never disappeared, to be replaced by Dewey’s pragmatism. What remains to be seen is whether democratic experimentalism can connect to some significant political movement in a similar way.15 Michael Dorf’s contribution to this Symposium suggests that the Occupy Movement might be “ground for nurturing the institutions of democratic experimentalism.”16 That formulation suggests that Occupy might embody experimentalism within its organization forms. That is not quite the same as promoting democratic experimentalism as a governance technique. But perhaps internal structures might be mirrored in the structures the movement promotes as policy. Were the Occupy Movement or some other yet-to-emerge political movement to provide the connection between democratic experimentalism and large-scale politics, the genealogical link between pragmatism and democratic experimentalism would be complete.

NOTES 1. I note at the outset that I am a legal scholar familiar with the broad outlines of pragmatism in philosophy, but entirely incompetent to say anything about that subject. I confine my comments to aspects of U.S. public law that fit within the general contours of democratic experimentalism and leave its philosophical analysis to others. 2. In his contribution to this volume, William Simon suggests a weaker connection between Deweyan pragmatism and democratic experimentalism, observing that the “practical developments” on which democratic experimentalists focus “have occurred independently of the revival of pragmatist political thought, but they complement it” (p. 6). As sketched below, there may be the same relation of independent development and complementarity between Dewey’s own pragmatism and the Progressive theory of administrative law. 3. My focus is on democratic experimentalism in the United States. Its connection to ideas about “new governance,” widely discussed in connection with European law, are interesting but beyond both the scope of these reflections and my expertise. 4. I have presented an outline of this history, with supporting citations from Progressive scholars, in “Administrative Law in the 1930s,” Duke Law Journal 60 (2011): 1565–1637. 5. The British courts were even more hostile to administrative law, which they saw as embodied in French bureaucracies insulated from control by the ordinary (common law) courts. I suspect that the intellectual history of new governance in the European Union, to which democratic experimentalists sometimes point as exemplifying their approach, has a weaker connection to Deweyan pragmatism than democratic

Reflections on Democratic Experimentalism in the Progressive Tradition 261 experimentalism in the United States and probably blends the defenses of the French droit administratif with the incremental mutual accommodation of the common law and modern administration in Great Britain. 6. Section 1 of Jamison Colburn’s essay in this volume provides an account of the history of judicial review of administrative action roughly consistent with the foregoing. 7. Charles F. Sabel and William H. Simon, “Contextualizing Regimes: Institutionalization as a Response to the Limits of Interpretation and Policy Engineering,” Michigan Law Review, forthcoming. 8. Strikingly, the article’s first section describes problems with the presentation of scientific evidence in criminal cases and urges that courts rely on a form of administrative supervision of crime laboratories to ensure accuracy in that presentation. Through its very structure, then, the article signals its connection to connection to the Progressive engagement with science. 9. We might attribute some regulatory pathologies, such as the occasional mindless pursuit of bureaucratic goals by a mission-committed staff, to this normative and instrumental indeterminacy. Administrative law’s response was to re-inject scientific rationality into the process, through insistence on cost-benefit analysis supervised by an institution separate from the agencies, the Office of Information and Regulatory Affairs (OIRA), located within the Office of Management and Budget, itself located within the President’s office. 10. President Obama’s OIRA did make reevaluation of existing regulations one of its signature initiatives, and it trumpets as a major achievement rescinding and regularizing many older regulations. 11. Desautels-Stein, this volume, p. 197. 12. I have heard Sabel make this suggestion, and I believe that he has said so in print, though I do not have a source readily at hand. I think it is consistent with Simon’s discussion of “irritants” in his contribution to this volume (p. 24). 13. Progressives and their heirs were sometimes able to get support from regulated entities, who saw in regulation methods of organizing particular industrial sectors, controlling rogue operators, for example, or using regulatory compliance as a mechanism to force smaller competitors within the sector out of business. 14. This sort of political analysis is not entirely absent from the legal literature on democratic experimentalism, but it plays a decidedly secondary role. 15. Desautels-Stein’s argument that democratic experimentalism reflects “a pervasive if disenchanted liberalism” suggests a connection to politics, but not an encourageing one. Perhaps we could connect European “new governance” as a model for democratic experimentalism to something like a chastened but still hopeful politics of social democracy. 16. Dorf, this volume, p. 263, abstract.

Mark Tushnet Harvard Law School 1563 Massachusetts Avenue Cambridge, Massachusetts 02138 United States

Contemporary Pragmatism Vol. 9, No. 2 (December 2012), 263–271

Editions Rodopi ©2012

Could the Occupy movement Become the Realization of Democratic Experimentalism’s Aspiration for Pragmatic Politics? Michael C. Dorf

Critics of pragmatism sometimes complain that the pragmatist insistence only upon what “works” misunderstands that means can only be defined in terms of ends. Yet pragmatists do not deny the need for ends. In both ordinary life and in politics, pragmatism instead insists only that ends are provisional, subject to being revised through the exploration of means. The Occupy movement may be an illustration of pragmatist politics in action. Derided by its critics for lacking a substantive agenda, Occupy is best understood as a democracy movement that aims to substitute empowered citizen decision making for elite rule. Seen this way, Occupy could provide fertile ground for nurturing the institutions of democratic experimentalism.

In common parlance, “pragmatism” connotes flexibility with respect to means. People who are deeply committed to “principle” or, worse, “ideology,” will insist on particular approaches to accomplish the ends they favor. Ideological monetarists will reject Keynesian stimulus; committed foreign-policy idealists will refuse to deal with regimes that violate the core principles the idealists hold; strict church-state separationists will oppose government funding of faith-based organizations to deliver social services. By contrast, in each of these examples and countless others, pragmatists will not rule out options that hold out hope of working based on abstract principle or ideology. In practice, of course, pragmatism lies on one end of a spectrum, with principle and ideology at the other. Still, we understand the ordinary-language sense of pragmatism as entailing two core ideas: to be a pragmatist is to be flexible about means and to hold commitments of principle or ideology only weakly. Thus, it may be thought somewhat ironic that when used in the philosophical sense, “pragmatism” itself entails a kind of deep commitment. Philosophical pragmatists appear deeply committed to the notion that they hold no fixed ends whatsoever. William James put the point most starkly when he wrote that pragmatism “has no dogmas, and no doctrines save its method,” and that method, in turn, is to ascertain whether some particular idea or program has desirable consequences, nothing more. 1

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Pragmatism’s critics have tended to object to pragmatism’s seemingly dogmatic anti-dogmatism on two distinct grounds. First, James and his followers, especially Richard Rorty, appeared to offer pragmatism not only as a guide to action but as an account of our understanding of the physical world, a kind of alternative metaphysics.2 That view struck many as obscure, obtuse, or both. What exactly did Rorty mean when he said that it was “obvious” that “mountains ... were here before we talked about them,” but aimed to set aside “the question of whether Reality as It Is In Itself, apart from the way it is handy for human beings to describe it, has mountains in it?” 3 Rorty and other pragmatists were either attributing peculiar views to non-pragmatists who argued about metaphysical questions or, worse, were endorsing the sort of skepticism that Samuel Johnson may be thought to have refuted with a good hard kick. 4 Although I hold views that are, in many respects, close to those expressed by James, I must confess that I find this meta-metaphysical argument even less useful than the metaphysical arguments that pragmatism is meant to displace. And, although I shall not elaborate the point, I have a similar reaction to metaethical debates about the character of ethical propositions. Accordingly, here I simply note the existence of ongoing controversy about the pragmatist view of truth and move on. I turn now to the pragmatist response to a second criticism of pragmatism. Non-pragmatists often complain that the pragmatist insistence on pursuing what “works” misunderstands what it means for an idea or program to “work.” For an idea or program to work, the critics complain, the idea or program must successfully accomplish some goal. “Working,” in this nonpragmatist view, is necessarily defined relative to some fixed end or ends. The critic of pragmatism contends that disagreements about what practical course to pursue are often rooted in disagreements about goals or values. Thus, for example, someone who values the production of law-abiding citizens will think that one kind of education works best, while someone who values the production of free-thinking citizens will think that a different kind of education works best. The pragmatist who attempts to dissolve this debate by saying that we should not argue about the goals of education but simply try to agree on a method of education that “works,” has missed this basic feature of the relation between means and ends, the critic complains.5 Certainly there are contexts in which this criticism appears to be fair. Some debates that purport to be about facts or practical policy may actually reflect a clash of values. For example, political fights about how to respond to man-made global warming, or even about whether the phenomenon exists, may ultimately be rooted in different relative valuations of economic growth versus environmental protection – or perhaps they even reflect different views about the likelihood of divine intervention to avert an environmental catastrophe. 6 Debates about whether condom distribution to sex workers effectively retards the spread of HIV/AIDS may reflect different views about the seemingly irreducibly normative question of whether women ought to have the freedom to

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choose a life of prostitution, given the economic and social constraints on such choices.7 And so on. The foregoing examples show that some debates that purport to be about means are really debates about ends – at least for some of the participants for some period of time. But the examples and the broader criticism miss the mark because pragmatism does not deny that means must be evaluated relative to ends. The key pragmatist insight is simply that ends are not fixed: they exist in a state of dialectical reciprocity with means.8 I can illustrate the point with a simple example from daily life. Suppose that Mary and Jane are planning to get together for dinner and a movie. They need to decide both where to have dinner and what movie to see. How will they go about making these decisions? If they are like most people, they will not first identify their goals and only then seek a restaurant and a movie that meets those goals. Rather, the very process of selection will clarify and shape their goals. Mary proposes a new Thai restaurant that has gotten good reviews, followed by a romantic comedy that features a favorite actor. Jane says that she heard the service at the Thai restaurant is slow, which will put them at risk of missing the movie. Mary suggests an Italian restaurant with speedier service. Jane is not enthusiastic about the Italian restaurant and suggests that the Thai restaurant will be fine; they can see an award-winning foreign film that starts later. Mary says that she needs to be done in time to relieve her babysitter. Jane counters that perhaps they should just go to the Thai restaurant and skip the movie, which will give them more time to talk anyway. Mary then suggests that the two friends just go for a long walk in the park and buy snacks from a pushcart. Jane happily agrees. In this hypothetical but realistic conversation, Jane and Mary began with the provisional goal of identifying a good restaurant to visit and a movie to see, but in the course of discussing the best means of pursuing that goal, they came to realize that their deeper goal was something else: to spend time together engaged in a mutually satisfying activity. Dinner at a restaurant followed by a movie could have satisfied that goal, but they discovered an even better choice: a long walk in the park. Exploration of possible means of achieving their provisional ends helped them to re-conceptualize those ends. Here, as in most of our activities, the pragmatist insight reveals that means and ends reciprocally and continually define and redefine one another. The same process occurs for more important decisions. Suppose Debbie receives an offer for a substantially better-paying job than she now holds but that the new job would require her to move to a distant city. Moving would be disruptive to her and her family. Perhaps the public schools in the distant city are not as good as the school her children currently attend. Debbie and her partner may discuss private school options or the possibility of home schooling. The decision whether to take the job will lead them to re-evaluate their individual goals for themselves, their children and their relationship. In this way, the choice of a job – which is both a means to the end of making a living and an

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end in itself for those lucky enough to have satisfying work – can be the occasion for Debbie and her partner to reassess their life goals. Politics in a democracy works in much the same way. When a Presidential candidate asks the electorate whether they “are better off today than four years ago,” the candidate both implies that prosperity should be an aim of governance and offers a yardstick for measuring progress towards prosperity. Likewise, a candidate who campaigns on children’s educational achievement (or the lack thereof), universal health care, public safety, national defense, or any of a myriad of other policy questions thereby asks the public to come together to assess their common ends and the means for achieving those ends. That, at any rate, is true in theory. In real-world democracies, various pathologies can distort deliberation about the ends and means of politics. Movements to bring about fundamental systemic political change can thus be understood as aiming to make the process by which ends and means are chosen more responsive to the interests of either particular excluded groups – as in the case of identity politics movements like the civil rights movement, the women’s rights movement, and the LGBTQ rights movement – or to the interests of the public as a whole rather than the interests of individuals or groups thought to exert unfairly disproportionate power. The Occupy movement that emerged in the fall of 2011 is an example of the second category, as reflected by the slogan “We are the ninety-nine percent.” That catch-phrase nicely captures the normative claim that politics should be presumptively about serving the interests of the great mass of the public. It also captures the descriptive claim that in the United States today, the wealthy (the one percent) have managed to co-opt the political and economic systems. Nonetheless, many observers have expressed befuddlement about the goals of Occupy. “What do they want?” these observers ask with more than a little exasperation.9 When expressed by politicians and media outlets that themselves might be thought to serve the interests of the one-percent, such befuddlement can be dismissed as self-serving. Yet there is a kernel of truth to the trope that Occupy has presented demands no more concrete than, as my Cornell Government Department colleague Sidney Tarrow puts it, “Recognize us!”10 I agree with Tarrow and others that it is too soon to tell whether Occupy will fade away or coalesce into a more conventional political movement, and if the latter, what its central focus will be. But I also want to suggest that this whole line of inquiry may be viewing Occupy through the wrong frame. Most observers take the Occupy movement to be operating within American constitutional democracy. Viewed this way, it is logical to ask what concrete policy changes are sought by Occupy protesters. Do they want higher capital gains taxes? A constitutional amendment overturning the Citizens United decision? More money for mortgage relief? Etc. Yet what if we view the protesters not as a movement for anything within democracy but as a movement for democracy?

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In this view, we should not be comparing Occupy to the civil rights movement or the women’s movement but to the Philippine “people power” movement of 1986, the Tiananmen Square protests of 1989, and the Arab Spring of 2011. Nobody thought to question any of those protesters about their concrete aims: What exactly would be the land policy post-Marcos? What role would the state play in the economy if the Tiananmen protesters had succeeded in deposing the Chinese Communist Party? What version of Islamic finance would be used following the removal from power of Ben Ali and Mubarak? Such questions would have been rightly seen as premature because everyone understood that the protesters in these movements sought, first and foremost, democracy – with most concrete policy choices to be made within the framework of democracy only once it was established. It may be difficult to see Occupy as a democracy movement because the United States already has democracy, but from the protesters’ perspective, this is hardly clear at all. The protesters believe that government serves the needs of the rich and powerful, rather than the considerably greater needs of the poor and middle class. And given the enormous and apparently increasing influence of money on politics, the protesters have a point. That may describe Occupy today but not necessarily forever. Where will the Occupy movement end up? I can imagine at least three possibilities. One is that Occupy injects some life into progressive politics but then runs out of steam, becoming something like a conventional NGO, much in the way that MoveOn.org, after its founding as a grass-roots movement to oppose the Clinton impeachment, became a kind of all-purpose advocacy and lobbying shop on the liberal/left.11 Writing in the New York Times in October 2011, James Miller warned of a second possibility: That a small number of extremists could hijack the Occupy movement, much in the way that anarchists have attempted – with some success – to hijack the anti-globalization movement.12 The risk is less that blood will run in the streets (although some might), but that violent tactics will turn public opinion against the mass of peaceful Occupy protesters. Thus far, the “optics” of protest have been excellent for Occupy. The movement has shown remarkable sensitivity to the risk of violence and has taken steps to guard against it, with most instances of violent excess taking the form of police over-reaction to peaceful protest.13 Still, given the largely leaderless nature of Occupy, it is impossible to rule out co-optation by radicals. A third possibility is that Occupy might bring about lasting fundamental change in the mechanics of American democracy. Part of the misunderstanding of Occupy has been the search for goals in the domain of substantive policy, when all along, much of the movement has been about fostering direct deliberation. “General meetings” operate by consensus. The “human microphone,” born of necessity when the authorities forbade electric amplification, 14 might be thought to serve as a metaphor for the movement as a whole: the voice of any one speaker depends on the willingness of others to amplify it.

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It would be easy to dismiss the human microphone or the communication of views via the waving of fingers as the precious affectations of a movement of arrested adolescents. But such a dismissal would be a demographic oversimplification and largely unfair. Direct deliberation under a rule of consensus is democracy. What we have come to accept in its stead – representative government – is, even at its best, only an approximation. Going forward, Occupy faces roughly the same challenge of scale that all democracies face when the body politic grows too large to conduct business by town meeting: How to preserve the perception and reality of participation experienced during direct deliberation when the locus of decision-making power shifts to representative bodies? Along with my sometime collaborators in the development of the theory of democratic experimentalism, I believe I have a possible answer: We should come to understand much of the point of representative democracy at the supralocal level as creating the circumstances under which direct deliberation can occur at the local level.15 If national politics mutes the voices of the ninety-nine percent, one can attempt to remedy that problem by aiming to reform the means of national politics – for example, through serious campaign finance regulation of the sort that our conservative/libertarian Supreme Court has until now tended to invalidate. But, in addition, one can try to shift the locus of decision making from Congress and state legislatures to processes in which citizens themselves participate in identifying the relevant problems and solutions. In short, I am proposing a marriage of the Occupy movement and the institutions of democratic experimentalism. Can it work? Perhaps, but I would identify two potential obstacles. The first is more a matter of perception than reality. As a movement more or less of the left,16 Occupy tends to attract protesters who may be wary of any institutional program based on private-sector logic. And because democratic experimentalism builds on organizational insights that first emerged in the private sector, to the unsophisticated it may look like a form of privatization or deregulation. Thus, the first order of business for those of us who want to sell democratic experimentalism to Occupy or, for that matter, to a broad crosssection of the American public, is to make clear that the institutions of democratic experimentalism emerged first in the private sector but are not in any fundamental sense about deregulation. Champions of democratic experimentalism (including myself) have been careful to make this point in our academic writing but, not to put too fine a point on it, street protesters do not take their cue from academic writing. That mismatch takes me to what I see as the second potential obstacle to a marriage between Occupy and democratic experimentalism. Even when properly regarded as lacking a deregulatory agenda, democratic experimentalism can seem technocratic and bloodless. There is a romance about street protests that one finds missing from the data collection, coordinated information

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exchange, and practical deliberation that are the stock in trade of democratic experimentalism. I am nonetheless sanguine about the prospects for smoothing over whatever culture clash one might expect to see between a new approach to governance and street theater. During the long period of encampment in Zucotti Park and elsewhere, Occupy had to solve numerous practical problems – involving issues of food, shelter, heat, medical services, sanitation, safety, and more. The Occupiers showed themselves to be tenacious organizers and deliberators.17 They are much more civically engaged than the average citizen, more willing to tolerate what Oscar Wilde famously called the trouble with socialism: “it takes up too many evenings.”18 For Occupy, democratic experimentalism thus offers the seemingly impossible: An opportunity to bring the movement up to scale without sacrificing what has to this point been seen as a weakness but is in fact its greatest strength: the lack of a fixed substantive agenda. The key word in that last sentence is “fixed.” Pragmatist politics can be about pursuing substantive aims that take the form of authoritative enactments – whether it is the Volcker rule19 or a constitutional amendment authorizing effective campaign finance regulation.20 But it necessarily pursues such enactments as provisional means to provisional ends. As governments increasingly look for ways to shut down the Occupy protests, 21 the protesters may come to understand that the occupation of public space was both a means of bringing attention to economic and political injustice as well as a kind of end in itself: namely, to practice democracy.

ACKNOWLEDGEMENTS I wrote this essay in the fall of 2011, at the height of the Occupy movement. Because the paper uses Occupy merely for illustrative purposes, I have not revised it in light subsequent events.

NOTES 1. James, “What Pragmatism Means,” in Pragmatism: A Contemporary Reader, ed. Russell B. Goodman (London and New York: Routledge, 1995), p. 56. 2. Ibid., pp. 53–55; Richard Rorty, Philosophy and the Mirror of Nature (Princeton, N.J.: Princeton University Press, 2009), pp. 176–178, 265–266, 308–311. 3. Richard Rorty, “Does Academic Freedom Have Philosophical Presuppositions?” in The Future of Academic Freedom, ed. Louis Menand (Chicago: University of Chicago Press, 1996), pp. 29–30; Ronald Dworkin, Justice for Hedgehogs (Cambridge, Mass.: Harvard University Press, 2011), pp. 60–62. 4. See Boswell’s Life of Johnson, ed. George Birkbeck Hill (New York: Harper and Brothers, 1891), pp. 545–546.

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5. See Charles W. Anderson, Pragmatic Liberalism (Chicago: University of Chicago Press, 1990), pp. 7–10. 6. See for example, “A GOP Leader’s ‘Theological’ Take on Climate Change,” The Week (10 November 2010). Online at http://theweek.com/article/index/209153/agop-leaders-theological-take-on-climate-change. 7. See Aziza Ahmed, “Feminism, Power and Sex Work in the Context of HIV/AIDS: Consequences For Women’s Health,” Harvard Journal of Law and Gender 34 (2011), pp. 234–242. See also John Gastil et al., “Deliberation Across the Cultural Divide: Assessing the Potential for Reconciling Conflicting Cultural Orientations to Reproductive Technology,” George Washington Law Review 76.6 (2008), pp. 1775– 1783; Dan Kahan, “Is Cognitive Cognition a Bummer?” The Cultural Cognition Project, accessed on 23 March 2012, online at http://culturalcognition.ney/blog/2012/1/20/iscultural-cognition-a-bummer-part-1.html. 8. John Dewey, “Theory of Valuation,” in The Later Works, 1925–1953, vol. 13, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1981), pp. 210– 219. 9. See for example: “Occupy Protesters: No End Goal, No End in Sight,” CBSNews.com (2 November 2011), online at http://www.cbsnews.com/8301-201_16220128926/occupy-protesters-no-end-goal-no-end-in-sight/; Dan Gainor, “Occupy Wall Street – More Than Just Another Loony Protest Movement From the Left,” Fox News (3 October 2011), available online at http://www.foxnews.com/opinion/2011/10/03/occupywall-street-not-just-another-liberal-protest/. 10. Sidney Tarrow, “Why Occupy Wall Street is Not the Tea Party of the Left,” Foreign Affairs (10 October 2011), online at http://www.foreignaffairs.com/articles/ 136401/sidney-tarrow/why-occupy-wall-street-is-not-the-tea-party-of-the-left. 11. See Terrence McNally, “MoveOn as an Instrument of the People,” AlterNet (24 June 2004) online at http://www.alternet.org/story/19043; “About the MoveOn Family of Organizations,” MoveOn.org (accessed 23 March 2012), available online at http://www.moveon.org/about.html. 12. James Miller, “Will Extremists Hijack Occupy Wall Street?” New York Times (25 October 2011), available online at http://www.nytimes.com/2011/10/26/opinion/willextremists-hijack-occupy-wall-street.html. 13. See for example: Adam Gabbatt, “Occupy Oakland: Iraq War Veteran in Critical Condition After Police Clashes,” The Guardian (26 October 2011), online at http://www.guardian.co.uk/world/2011/oct/26/occupy-oakland-veteran-critical-condition; “‘Occupy Wall Street’ UC Davis Protests Escalate After Pepper Spray Use Sparks Anger,” Washington Post (21 November 2011), at www.washingtonpost.com/national/ occupy-wall-street-uc-davis-protests-escalate-after-pepper-spray-use-sparks-anger/2011/ 11/21/gIQAN0r2iN_story.html; Joseph Ax, “Occupy Protesters Sue New York City Over Pepper Spray Incident,” Reuters (13 February 2012), at www.reuters.com/article/2012/ 02/14/us-newyork-occupy-lawsuit-idUSTRE81D06N20120214. 14. Richard Kim, “We Are All Human Microphones Now,” The Nation blog (3 October 2011), available online at http://www.thenation.com/blog/163767/we-are-allhuman-microphones-now; Laird Harrison, “Consensus, Human Mic Become Part of ‘Occupy’ Culture,” Reuters (24 November 2011), at http://www.reuters.com/article/ 2011/11/24/us-protests-culture-idUSTRE7AN18020111124. 15. Michael C. Dorf and Charles F. Sabel, “A Constitution of Democratic Experimentalism,” Columbia Law Review 98.2 (1998), pp. 316–324.

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16. I am admittedly painting with a broad brush. Because of its openness and substantively protean nature, Occupy attracts participants with a wide range of ideological views. See Justin Sink, “Paul Supports Anti-Wall Street Protests,” The Hill blog (3 October 2011), available online at http://thehill.com/blogs/blog-briefing-room/news/ 185081-paul-offers-support-for-anti-fed-occupy-wall-street-protestors; Brian Donohue, “A Conservative Visits Occupy Wall Street and Finds (Gasp!) Ron Paul Fans,” NJ.com (12 October 2011), available online at http://www.nj.com/ledgerlive/index.ssf/2011/10/ cranky_con_goes_to_occupy_wall.html. 17. The Occupy movement has been able to set up an impressive infrastructure to provide necessities including fundraising, media, wireless networks, medical services, food, and shelter. See Lisa Chiu, “Occupy Wall Street Raises More Than $450,000,” Chronicle of Philanthropy (31 October 2011), online at http://philanthropy.com/article/ Occupy-Wall-Street-Raises-More/129595/; “‘Occupy’ Camps Provide Food, Shelter for Homeless,” Wall Street Journal (22 October 2011), at http://online.wsj.com/article/ AP1ad8063f8c3a427b92a69e3d55f982a1.html. 18. See Oscar Wilde: A Life in Quotes, ed. Barry Day (London: Metro Books, 2000), p. 238. 19. The Volcker Rule as originally proposed was an attempt to limit banks from engaging in proprietary trading, prevent them from owning or investing in private equity funds, and limit the liabilities that the largest banks could hold. Rachel Singer, “Occupying the SEC for a Stronger Volcker Rule,” The Nation (16 February 2012), available online at http://www.thenation.com/article/166320/occupying-sec-strongervolcker-rule; Victoria McGrane, “Occupy Wall Street Comes to the Aid of Volcker Rules, Wall Street Journal blog (15 February 2012, 6:21p.m.), at http://blogs.wsj.com/ deals/2012/02/15/occupy-wall-street-comes-to-the-aid-of-volcker-rule/. 20. “Promoting Campaign Finance Reform as a Constitutional Amendment,” Occupy Chicago, accessed 23 March 2012 online at http://occupychi.org/phpbbforum/ viewtopic.php?f=11&t=64. 21. See Dalia Lithwick and Raymond Vasvari, “You Can’t Occupy This,” Slate (19 March 2012), available online at http://www.slate.com/articles/news_and_politics/ jurisprudence/2012/03/the_anti_protest_bill_signed_by_barack_obama_is_a_quiet_attack _on_free_speech_.html; “Occupy L.A.: 292 Arrested in Camp Shutdown,” Los Angeles Times blog (30 November 2011), at http://latimesblogs.latimes.com/lanow/2011/11/ occupy-la-292-arrested-in-camp-shutdown-1.html; Emmett Berg, “Arrests in Oakland Protest Rise to More than 400” Reuters (29 January 2012), at http://www.reuters.com/ article/2012/01/29/us-oakland-protests-idUSTRE80S00520120129.

Michael C. Dorf Cornell Law School 242 Myron Taylor Hall Ithaca, New York 14853-4901 United States

Contemporary Pragmatism Vol. 9, No. 2 (December 2012), 273–285

Editions Rodopi ©2012

Democratic Experimentalism: From SelfLegislation to Self-Determination James Bohman

As developed by Sabel, Dorf and Cohen, and John Dewey before them, democratic experimentalism is based on the premise that current democratic practices are no longer able to deal with central and pressing social and political problems. Beginning with the criticism of democracy as command and control, Dorf and Sabel show how current democratic practices are part of the problem rather than the solution. Even as democratic experimentalists have successfully explored democracy beyond the state in the European Union, I argue that they have not fully transnationalized democracy or fully appreciated “the new circumstances of politics.” With the emergence of pervasive forms of interdependence, Rousseau’s conception of democracy as self-legislation is no longer adequate, despite its cogent normative assumptions. Instead, the new trans-national circumstances of justice suggest a stronger conception of democracy as selfdetermination. In order to minimize domination and maximize selfdetermination, cross cutting constituencies must achieve a shared democratic minimum, through which democracy may once again become a means to justice.

One of the distinctive features of recent political order is that democracy is no longer confined to the national state. More than being applicable in a variety of contexts, democracy is no longer about “the People,” whoever they are. Rather, it must be applied in complex, pluralist, globalized contexts characterized by extensive, multiple and overlapping constituencies that cut across boundaries as well as space and time. Democracy can no longer be thought to be the sole provenance of the territorial nation state. While many emphasize new non-state forms such as the European Union, it could be done so more consistently and rigorously by seeing these developments in the context of a larger shift away from the long held view that democracy is “self-legislation,” the act of constituting “a People” that is the subject and author of the law. However much we have presupposed self-legislation in thinking about democracy at any level, it is not only misleading under current circumstances; it is also no longer the best way to realize democracy under current circumstances. Rather, it has become

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increasingly clear that self-legislation has now become more regressive than progressive, in that its current realizations now promote rather than minimize domination. Indeed, the primary goal of current theories of democracy is to identify the progressive possibilities as they emerge under the new and still emerging circumstances of politics. In arguing that self-legislation is no longer progressive, I do not mean to deny its normative power and historical significance as a practical conception of democracy. Rousseau provided perhaps the first and also clearest statement of this view. Here the law that we give ourselves collectively is the same law that we would each give to ourselves individually, assuring the basis for shared self rule. Democracy is accordingly based on the ideal of equality, in that all are protected from arbitrary laws to the extent that each has an equal chance to influence collective decision making. Indeed, this conception of equality is present in both participatory theories of democracy as well as most forms of deliberative democracy. This particular idea of self rule based on equality is also at the core of social contract theory, although they have been realized primarily by voting and representative democracy. As much as this conception has long guided our practices, it is now unable to deal with the problem of the very mutual vulnerability on which it was founded. Indeed, political equality has long been the solution to the fact of shared vulnerability, even as putative democratic polities are no longer able to maintain their conditions of equality across various territorial constituencies. Once these more directly deliberative features are lost, higher level forms of decision making begin to predominate, often based on delegation of citizens as principal to agents who execute the decision as well as its implementation. The cost to democracy is that it is no longer capable of realizing either basic forms of self-determination. Not only does such decision making undermine self rule, it does so at the cost of the democratic benefits of equality. These benefits are crucial under the current circumstances of politics. 1. Self-Legislation and Self-Determination The idea of self-legislation has served two main functions: it not only guides our theories of democracy but also informs our fundamental democratic practice, particularly at the level of implementation and institutionalization. However, it is increasingly clear that many of these practices can no longer be implemented unproblematically. Under current circumstances of size, scale, complexity and pluralism, none of which figure prominently in practices of self-legislation, what is needed at the very least is a full consideration of the prospects of transnational democracy under current circumstances. More importantly, however appealing self-legislation is, it needs to be reinterpreted and transformed, in order that new progressive democratic practices can emerge that would include a possible transnational form of democracy among the current possibilities. But the proper judgment of such possibilities requires that any alternative to self-legislation must hew closely to changes in the circumstances of politics; even as we must

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now begin to modify Rawls’s idea of the circumstances of justice. Any good theory of democracy under present circumstances must uncover the progressive possibilities in the present, possibilities which may better promote the normative ideal of democracy. As John Dewey describes one such democratic alternative to self-legislation, we need now to elaborate “those conditions under which the inchoate public may function democratically.”1 Indeed, we identify democracy so closely with self-legislation that it has lost the capacity to be a progressive force for democratic change, under current conditions of size, scale and complexity. In the case of transnational politics, the inchoate publics under consideration are plural, and the self-legislation model has very little to say about the possibility of new sorts of publics and constituencies. Such an account is under these circumstances decentered, insofar as it takes a whole array of transnational publics and democratic constituencies to be necessary in order to enable new progressive democratic possibilities of self-determination. Forms of democracy are progressive just in case that they aim to realize the basic feasible democratic norms of self-determination in the face of many different challenges to democracy, including at the very least well known problems of the effects of interdependency, size and complexity. Size, for example, limits the ways in which citizens and groups of citizens can exercise influence over decisions. This is also true because of the ways in which political decisions increasingly affect large numbers of people across both space and time, so that constituencies are so variable that it is difficult to determine how people within them are adversely affected in any straightforward way. The same is true for temporal influence, since decisions may have large effects on future generations. Complexity makes it very difficult for citizens to confront many of the facts and forces that influence their life chances, and as such raises epistemic difficulties for the sort of constituencies that are typical in democracy as selflegislation, to the extent that under these conditions self-legislation does not become self rule. Agents often fail to act in the interests of their principals; they may harm them sufficiently to say that they are being dominated. The circumstances of politics now make such aggregative decision making by agents too blunt an instrument to achieve democratic nondomination. The current circumstances of politics raise other problems for decision making. Many forms of decision making are now dispersed and differentiated in ways that often cannot be located within any single polity. Collective decision making is increasingly made under very different circumstances than those within a single state. While some collective decision making remains territorial, many, if not most collective decisions are no longer made within states, but are dispersed at a variety of levels of organization and in a variety of different locations and systems. Due to multiple forms of interdependence, governments now outsource many different types of decisions to disaggregated sites for collective decision making, now operating at multiple levels and institutional settings that employ a wide array of institutions and media. At these sites, the fate of individuals is joined not only with those who reside in the same polity,

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but also are intertwined with other political jurisdictions, precisely because of multiple forms of interdependence, making the fate of disparate peoples intertwined. Furthermore, such decisions are made by networks and collective agents, the processes of which citizens have little or no control or redress. As the scale and complexity of these interactions grow, they certainly limit the capacities of citizens to exercise influence on collective outcomes directly. When these constituencies are based on self-legislation, they are more often than not contrary to a more fundamental democratic value: freedom as self-determination. This problem is especially acute, since global interactions, interdependence and decision making give rise to the emergence of multiple forms of affectedness and potential domination. Given that there is little relationship between the scope of interdependence and effective decisional units of current forms of political organization, self-legislation becomes unable to address the emerging forms of domination inherent in broader and wider interdependence, in which self-legislation is itself often implicated in generating domination. In such cases, the individual is subjected to multiple forms of affectedness, some of which lead to domination through non-voluntary inclusion. In this way the self-legislation model can become ideological, and provide a false justification for institutions which no longer are generative of democracy as self rule. 2. Democracy and Self-Determination In order to escape the dilemmas of self-legislation, it is necessary to rethink the idea of “the self” in self-legislation; it is not “the People” who are exercising final control over collective decisions. Self-determination rather than selflegislation provides the basis for a conception of justice based on shared freedom from domination. The relevant affectedness concerns one’s freedom from domination, and achieving this may now require membership in multiple constituencies and networks. Under the current circumstances of politics, some forms of interdependency may well lead to the loss of self-determination exhibited most in the susceptibility to domination and the loss of equal standing. Of course, in many cases affectedness supports rather than undermines selfdetermination and democracy is not required as a means to equality. 2 Indeed, some forms of affectedness can operate to enhance rather than to undermine self-determination. In cases of problematic interdependency, however, it is necessary to have access to various kinds of institutions and networks that operate democratically so as to deal with their consequences. This indicates the need for more open forms of membership that would activate various powers and capabilities in situations in which affectedness means that citizens must seek a kind of equity or corrective justice. By so doing, they are able to form and reform those constituencies that are able to address those affected by problematic interdependencies that produce domination.

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Rather than looking for nondomination in the powers of states, or regulatory powers of their constitutions, such multiple and overlapping constituencies and networks provide a better basis for a new democratic minimum in an interdependent world. Nor can we assume that democracy is based on some collective site for decision making. Instead, democracy is simply whatever provides citizens with the means by which citizens are able to maximize self-determination. These circumstances of politics, which are shared by many across the globe, require that such memberships and constituencies are available and work in favor of nondomination. Seen in this way, democracy is now an explicitly avowed goal that can be a means to minimize domination. It can be realized in many different institutions at different levels including formal international institutions and nongovernmental organizations. Current transnational publics do not always understand themselves as contributing to the overall democratization of the international system. In the absence of responsive institutions, most transnational associations take contestation rather than popular control as their fundamental political purpose. The first concern of many transnational networks and movements is simply to resist domination, and success is measured by whether or not they actually attain some degree of influence over interdependencies and decisions. One way that they may do so is by constituting those affected by such decisions into publics. Indeed, many of these authorities are in fact “agents” of states and other large-scale organizations such as multinational corporations. While contestation is certainly an important feature of democratic politics in any context, publics can do more as initiators of democratization. In this role, they are able to attempt to shift authority away from states and their agents who govern them back to the principals themselves who are capable of exercising popular control and accountability. This task is admittedly made more difficult by the ways in which transnational publics are formed, however, without the benefit of a unifying forum in which they might constitute themselves as expressing their democratic will. But the central point here is that democracy in this sense must operate in such a way as to allow citizens the powers, standing and capacity to exercise influence over problematic interdependencies. As such, democracy must not only allow citizens to exercise influence as members of multiple and overlapping constituencies, it must require that qua individuals they also have the standing and powers sufficient for political agency that permits self-determination. Given the potential for domination inherent in interdependence, what sort of democratic institutions and practices could promote nondomination? Here we need to think in terms of a democratic minimum comprised of different principals who gain some effective control by participating in multiple and overlapping constituencies. The main task of democratic experimentalism is to explore the democratic possibilities of this kind of social space for emerging constituencies under the new circumstances of politics. These circumstances also influence how we understand the democratic minimum as the means to self-determination.

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JAMES BOHMAN 3. Self-Determination and the Sources of Generativity: The Democratic Minimum

The self-legislation conception of democracy demands that “the people” be able to control most decisions directly, by voting or other ways that might be achieved. In modern representative democracies, however, “the people” speak only intermittently and at best only indirectly influence those who control the levers of power. As applied to present-day democracies, a crucial challenge to the idea of the will of the people is the institutional complexity of those regimes. Arguably, then, a necessary move in rehabilitating the idea of the will of the people in modern times is to conceive of it in an institutionally distributed fashion. By the same token, the will of the people cannot be defined in abstraction from actual institutions and their operations (as some attempt to do when they think of it in terms of various kinds of aggregation). Because of the indirect character of the popular legitimation of authority, citizens must be able to influence the authority exercised within such institutions at least in those cases in which they are the object of arbitrary rule. But, as I have argued, in most cases “we the people” are now pluralized constituencies. Such transnational constituencies require that people not only have multiple memberships but also have the standing and powers to participate in deliberation about various functionally defined decision making processes that cut across various institutional memberships. Indeed, under these conditions there must be institutions which act so as to extend the capability and standing of individuals to address institutions that are directly concerned with addressing the potential for increasing levels of domination. Self-determination is, as Pettit once put it, an antipower, the power that shared freedom makes possible. How might this kind of dynamic process work to lessen domination? There seems no denying that numerous innovations have over the long historical term made democracy a better means to achieve the ends of justice than its past realizations. At the same time, there is good evidence to cast doubt on Jane Addams’s adage, that the only “cure for the ills of democracy is more democracy.”3 While endorsing this hopeful stance, Dewey immediately introduces a proviso: it can remedy its ills only by becoming a democracy that is genuinely different in kind.4 Otherwise democracy seems to face a vicious circularity diagnosed by Iris Young: “for democracy to promote justice, it must already be just.”5 Call this the “democratic circle.” While it can never be said to disappear, the circle can become virtuous through the “democratic minimum,” the achievement of equal normative statuses 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, one that depends on the relationship between deliberation, accountability and the capacity of citizens to introduce novel demands and claims in response to unjust circumstances. 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

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together, including democracy itself. In this sense, democracy is reflexive, to the extent that it consists in procedures and practices that make it possible to achieve the minimum powers and conditions necessary for self-determination as a means to nondomination. This understanding of rights as normative statuses and powers provides the conceptual basis addressing those nonideal situations in which interdependencies undermine democracy. 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 nonideal conditions. Even if they are realized, a democracy will not necessarily be just in all its dealings. It may not be just in all domains in which citizens are obligated, and it may not be just in relation to those noncitizens affected by its decisions whom they dominate. To the extent that the minimum is a matter of degree, it can be specified along a number of dimensions and by a variety of procedures. But once this minimum is met under current circumstances, a democracy cannot become more just without becoming more democratic at the same time, and vice versa. The democratic minimum is required in order that existing institutions are able to be sufficiently reflexive, that is, that they are generative of justice even as they promote fundamental political equality across multiple and overlapping peoples within and across polities. Democracies that recognize the political rights of the citizens of other democracies and all the citizens of their own in all their units have obligations to assure a whole variety of minima. These 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 as to whether or not they are violating the democratic minimum, so too will many citizens of different polities. The issue in both cases is one of normative statuses and powers: that is, whether or not someone has the normative power to make a claim about which others will genuinely deliberate about. The democratic circle suggests that duties to noncitizens are thus not distinct in kind, and only sometimes a matter of degree, depending on the nature and scope of interdependence as the basis of the democratic minimum across borders. Given this understanding of the democratic minimum, we can interpret rights as assuring conditions of nondomination as necessary for political agency. Mark Warren properly identifies the importance of rights in that they are “generative of a particular kind of politics,”6 that is, a politics based on the powers of citizens qua self-determining individuals; they do so by minimizing domination and securing statuses and claims. Here we can see how it is that the democratic minimum creates a virtuous circle, leading to greater justice and the capacity of individuals to expand status and create conditions under which publics are able to form and reform as new demoi emerge. Constitutions have a similar role in securing statuses and transforming decision making so as to create a regularized basis for nondomination as the guiding principle of political order. But this kind of democratic minimum and its institutionalization depend on developing experimental institutions that are able to reflexively realize the transformation of

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political life across borders. Here is an instance of a possible difference principle for nondomination: no increases in freedom overall (say by gains in institutional efficacy) that does not also at the same time decrease the extent and intensity of domination. Many international institutions fail to meet this standard and may increase domination while increasing their efficacy and efficiency. 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 amendment alone is not sufficient for the democratic minimum. But what is distinctive about a constitutional order is the use of political rights to create the possibility of “reordering the order itself.”7 As James Tully 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.”8 At the very least, constitutions are devices for achieving nondomination: a constitution gives citizens normative powers over normative powers, so that deploying a constitution significantly expands and regularizes the rights and duties, including the power to change the assignment of rights and duties. Constitutions need not be effective only within states, and it is clear that the transnational entities such as the European Union could also benefit from having a constitution for its political process, in particular to the degree that they also provide an effective means to make moral claims. Here we should look more closely at the ways in which exclusions might operate at the transnational level, and thus require institutions that create the space for the free and equal capacity for individual political agency. How might this work? The robust realization of various powers and statuses has made the member states in the European Union, more rather than less democratic. This is because the realization is neither functionally specific nor hierarchical. For example, the existence of EU-level courts has broadly impacted the legal recognition of immigrants’ rights, 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 upon the constitutional traditions of member states, even as they are extended to noncitizens.9 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 nondomination makes such powers and statuses more robust. EU-level institutions can thus “serve to make these states more democratic.”10 The extension of human rights in the EU even to noncitizens without naturalization shows the advantages of multiply realizing human rights in differentiated institutions, even as these powers are a source of further

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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 quasi-open 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. Once we abandon the assumption that there must be a unified public sphere connected to a single set of state-like authority structures, the democratic character of transnational deliberation becomes a means to selfdetermination. As Charles Sabel has argued, a “directly deliberative” design in many ways incorporates epistemic innovations and increased capabilities of economic organizations, in the same way as the regulatory institutions of the New Deal followed the innovative patterns of industrial organization in the centralized mass production they attempted to administer and regulate.11 Roughly, such a form of organization uses nested and collaborative forms of decision-making based on highly dispersed collaborative processes of jointly defining problems and setting goals already typical in many large firms with dispersed sites of production. Here we can turn to specific proposals made by democratic experimentalist conceptions of deliberative processes that enhance complex and multilevel order. One such process is found in the use of the Open Method of Coordination (OMC) for many different policies (such as unemployment or poverty reduction) within the EU and is best described as “a decentralized specification of standards, disciplined by systematic comparison.”12 In this process, citizens in France, Greece and elsewhere deliberate as publics about policies simultaneously with EU citizens at different locations. In this way they organize themselves in ways that enhance their interdependencies. 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 can be used as premises for the deliberation of others. Second, a shared normative framework established by initial goals and benchmarks structures the deliberation at each site and 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 labor, which takes advantage of the diverse circumstances and competences of various groups. Thus, while 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. Borders of all kinds,

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including jurisdictional ones, are then exogenous to democratic criteria and thus conflicts over borders have no democratic resolution. As Dahl puts it, “the criteria of the democratic process presuppose the rightfulness of the unit itself.”13 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.14 The reference to these criteria makes such 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. Practices such as the OMC do just that. They also expand the scope of participation that is not tied directly to citizenship in a specific demos; instead standing is expanded and freed from the requirement of specific citizenship as ensuring status. This kind of expansion of standing in the EU is not necessarily based on preexisting citizenship but may emerge across peoples and borders. Thus, transnational status once again is generative and creates equality across borders, creating new possibilities and democratic media for decision making. It also creates conditions of nondomination and self-determination under the new circumstances of politics. 4. Conclusion: Democratic Experimentalism, Justice and Political Equality Given that the circumstances of politics have changed, what are the feasible options for democracy? The new circumstances of politics have wide ramifications, since they spell the end of the usefulness of self-legislation as the way to incorporate self-determination. It is not just the circumstances of politics that have changed, but these circumstances in fact go deeper and fundamentally alter “the circumstances of justice.” These circumstances also play an important role in many collective decisions, especially concerning issues of the inclusion of people across borders affected by various non-voluntary forms of interdependence. In these cases, there must be ways to create the rights and standing of people that are not directly the result of citizenship within a state. In fact, it is the case that under the current circumstances of politics self-legislation is unable to deal with the now common problems of size, scale, complexity and pluralism; when it does so, it often does so in ways that undermine democracy, given the ways in which the current conceptions are unable to deal with new forms of constituencies. Self-legislation now stands in the way of realizing more robust democratic norms of self-determination at new levels of scale and thus across borders. If this analysis is correct, then we have entered a new phase of democratic experimentalism, that is, a process of democratically shaping the new circumstances of politics. If we look at changes in democratic practices, we can see at least three trends concerning the new circumstances of politics and justice. The first trend is economic and neo-liberal, based on the openness of borders to the world market. This understanding seems to depend on judgments at a large scale,

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based on unavoidably indeterminate consequentialist arguments about producing the greatest overall well being over the long term. This is certainly an experiment, but it is not a democratic one. It heightens rather than lessens the possibilities of exploitation and domination, nor does it promote much in the way of self-determination. Such circumstances of justice require democratic processes that limit domination and secure statuses and powers for all those affected. The second possibility is based on closed political communities rather than open markets. It is based on a narrow form of the self-legislation model. Under this form of the model, the people are the authors and subjects of the law. If it is considered to hold under narrower circumstances of politics, its emphasis on common vulnerability and human dignity make it deeply appealing. But like the open economic model, this model leads to a fundamental narrowing of the initial conception of democracy. Instead of openness, it advocates a closed order based on ideas of citizenship which require that “one enters at birth and exits only at death,” to use Rawls’s injunction.15 While this approach may exercise benevolence towards needy strangers around the world, it does so at the price of democracy itself, which cannot survive such a closed conception and perverse a commitment to nondomination. Democracy is not on this view a means to justice, but a means to construct a closed community. However perfectionist its conception of the common good, it cannot avoid the domination of those outside its borders as inherent in such a closed conception. The current circumstances of justice only heighten the likelihood of dominating others by exclusion. Transnational democracy thus provides a basis on which we can reconceive democracy in a complex, pluralized and globalized context. Crucial to this conception is the republican core of nondomination that is concerned not only with the nondomination of individuals, but also with domination that is the result of collective decisions. As Onora O’Neill also suggests, the fact of interdependence raises important issues with regard to nondomination. Here what is important is not that democratic citizens are the authors and subjects of the laws but rather that as such democracy promotes self-determination, particularly with regard to those forms of interdependence that undermine this freedom. Under these circumstances, the democratic minimum is hardly minimal, since on this basis individuals will have the powers to exercise influence over problematic interdependencies. The democratic minimum is thus not just a set of rights but also the normative basis on which multiple actors, in overlapping polities, can exercise plural memberships. It is that minimum of powers that provides just such necessary conditions needed for democratization, that is, for all those who are affected to be able to form and change the terms of their common life. This is central to the powers and capacities that make up the democratic minimum. This minimum is not directly a matter of equal citizenship, but rather applies to everyone equally in any situation with the potential for domination. It is certainly an achievement, since not every polity will be able to provide that basis for enabling fundamental equality based on nondomination.

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Despite the limits of the European Union, one important dimension of the EU is the way in which it exhibits interactions between publics and institutions that facilitate influence over dispersed decision making processes, now for multiple and overlapping demoi. But the new circumstances of politics require more than interaction with institutions, now that interdependence has become more and more pervasive and potentially dominating. While the democratic minimum disperses powers of self-determination across levels, the new problems that such experimentalism must face are to maximize the selfdetermination of those forms of interconnectedness that affect their lives. This gives rise to new kinds of democratic experiments, in which what are at issue is not just the transnational polity and its minimum. The global democratic minimum must be able to extend an equal right to self-determination to those whose affectedness undermines such freedoms. With its emphasis on nondomination and normative powers and right, republican nondomination is the proper aim of generative and inclusive forms of democracy.

NOTES 1. John Dewey, The Public and its Problems, in The Later Works, 1925–1927, vol. 2 (Carbondale, Ill.: Southern Illinois University Press, 1988), pp. 325, 327. 2. Dewey argues that “the old saying that the cure for the ills of democracy is more democracy” is apt only if it aims at what is genuinely novel. See Dewey, The Public and its Problems, p. 319. 3. Jane Addams, Democracy and Social Ethics (New York: Macmillan, 1902), p. 8. 4. John Dewey, The Public and its Problems, p. 325. 5. Iris Young, Inclusion and Democracy (Oxford: Oxford University Press, 2002), p. 35. 6. Mark Warren, “Beyond the Self-legislation Model of Democracy,” Ethics and Global Politics 3 (2010), p. 53. 7. Charles Sabel, “Constitutional Orders: Trust Building and Response to Change,” in Contemporary Capitalism, ed. J.R. Hollingsworth and R. Boyer (Cambridge, UK: Cambridge University Press, 1997), p. 159. 8. James Tully, “The Unfreedom of the Moderns in Comparison to Their Ideals of Constitutional Democracy,” Modern Law Review 32 (2002), p. 217. 9. Joseph Weiler points to the case of Gayusuz versus Austria that went to the European Court of Human Rights and led to the extension of social security benefits to third country nationals. See Weiler, “An ‘Ever Closer Union’ in Need of a Human Rights Policy,” European Journal of International Law 9 (1998): pp. 658–723, at 719. 10. On the democratizing role of the EU with respect to human rights, see Jonathan Bowman, “The European Union’s Democratic Deficit: Federalists, Skeptics, and Revisionists” European Journal of Political Theory 5 (2006), pp. 191–212. On the rights of immigrants to political participation in the EU on republican grounds, see Iseult Honohan, Civic Republicanism (London and New York: Routledge, 2002), pp. 238–239. 11. Michael Dorf and Charles Sabel, “The Constitution of Democratic Experimentalism,” Columbia Law Review 98 (1998), p. 292.

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12. Charles Sabel and Joshua Cohen, “Directly-Deliberative Polyarchy,” in Private Governance, Democratic Constitutionalism and Supranationalism (Florence, Italy: European Commission, 1998), pp. 3–30. For a more direct application to the EU, see Joshua Cohen and Charles Sabel, “Sovereignty and Solidarity: EU and US,” in Governing Work and Welfare in the New Economy: European and American Experiments, ed. J. Zeitlin and D. Trubek (Oxford: Oxford University Press, 2004), pp. 345–375. My description of the OMC as a deliberative procedure owes much to their account. 13. Robert Dahl, “Federalism and the Democratic Process,” in Liberal Democracy, ed. J.R. Pennock and J.W. Chapman (New York: New York University Press, 1983), p. 103. 14. Such an historical approach is defended by Allan Buchanan in Justice, Legitimacy and Self-Determination. This argument could be developed further with a different historical account of the democratic minimum; as it stands, it only partially fulfills the necessary conditions for making a multiunit polity democratic enough to be a means to justice. See Buchanan, Justice, Legitimacy and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004), chap. 5. 15. See John Rawls, Political Liberalism: Expanded Edition (New York: Columbia University Press, 2005), p. 12.

James Bohman Philosophy Department Saint Louis University Saint Louis, Missouri 63108 United States

Contemporary Pragmatism Vol. 9, No. 2 (December 2012), 287–299

Editions Rodopi ©2012

On Democratic Experimentalism: Toward a Culture of Love and Non-Violence Lenart Škof

This essay rethinks democratic experimentalism from an ethical point of view, and look at its potential for the future by drawing on two key thinkers of the late 20th and early 21st century: Richard Rorty and Luce Irigaray. I explore the experimentalist character in Irigaray’s later thought and point to a pragmatist link in her works, and then dynamize her original theory of sexual difference by pointing to G.H. Mead’s symbolic interactionism. Then a revolutionary character of Irigaray’s thought is defended by focusing on her interventions into the very core of Western philosophy and in particular its Hegelian heritage. By introducing Rorty into the debate, a pledge is made for a new democratic culture of love and nonviolence as a ‘spiritual’ mode of democratic experimentalism needed in our times. Finally, I show that Irigaray’s and Rorty’s thought share an affinity toward intercultural thinking, bearing important consequences for an ethicospiritual project of democratic experimentalism.

1. One of the foremost tasks of our age, according to Fred Dallmayr, is to reconnect ethics with politics. This can mean, firstly, to push the liberal conception of politics towards the so-called ethical liberal democracy, and, secondly, to proceed ethically and politically towards a new world culture of non-violence, drawing also on rich intercultural knowledge of our times. For this purpose, Dallmayr invokes Dewey’s idea of radical democracy as a conjoint mode of associated living.1 We can agree that it is within this idea of communal life, associated both with new ethical and intercultural visions that any future attempt of introducing ethics into politics (or reconnecting both in a new way) is to be grounded. This essay is an attempt to rethink the issue of democratic experimentalism from an ethical point of view and look at its potential for the future by way of drawing on, in my opinion, two key thinkers of the late 20th and early 21st century: Richard Rorty and Luce Irigaray. It is an attempt to bring both thinkers closer to the rich democratic ideals of Dewey and at the same moment

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to explore some possible further developments within pragmatism and feminism that would lead to a conceptualization of the idea of democracy as a way toward culture of love and non-violence. Although the original points of departure of Rorty and Irigaray could not differ more (analytical philosophy vs. Lacanian psychoanalysis) there still exists a common ground (especially in their later works) for putting them into a fruitful dialogue. Beyond the fact that both in fact entered the philosophical arena with a book on the role of “mirrors” and the criticism of the “Eye of the mind” in the history of Western epistemology and metaphysics (Rorty published his book Philosophy and the Mirror of Nature in 1979, and her seminal Speculum of the Other Woman Irigaray slightly earlier, in 1974), in their later works both Rorty and Irigaray are clearly and passionately committed to one sole goal: they see the progress of sentiments2 as a most useful way of hoping for any future ethics and culture of democracy. Both are also fervent critics of the “classical” vertical transcendence and pledge for a more sensible and “pragmatist” horizontal mode of our “between-us” as a mode of associated living. In the very first lines of one of her later works (Sharing the World), Luce Irigaray defends her philosophical project in a way that heavily resembles Dewey’s pragmatist ideals: When the world corresponds to the transcendence projected by a single subject ... [t]he intuition of the infinite can remain, but the dynamic, indeed the dialectical, relations between time and space somehow or other freeze.... And the proposal of new values is generally contested until the milieu becomes imbued with them and imposes them as an almost eternal reality of truth, after it has become immune to their novelty.3 Irigaray defends the way of an infinite, and, we may add, experimentalist character of our becoming. It is only possible to secure a world for myself through a projection toward the future horizon of between-us. In this process, I have to acknowledge the irreducible othereness of the other (her/his transcendence) and respect the sexual difference (the difference being both natural/empirical and transcendental). This dialectic – i.e., a process from the closure of subjectivity toward the transcendence of the other – is the first possibility of the revelation or opening of the infinite in me. Only when I am imbued with the irreducible otherness of the other, and fully attuned to its horizons, contesting my fixed and static existence, it is possible to ascertain the dynamic and dialectical (but peaceful) relation between two worlds. It is indeed possible to bring Irigaray to the closest vicinity of pragmatism even more directly. In her book on nomadic ethics, entitled Transpositions, Rosi Braidotti labels Irigaray’s work with the term “ethical pragmatism.” Braidotti draws on Irigaray, labeling her as a critic of liberal individualism and characterizing her as a thinker whose

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proper object of ethical inquiry is not the subject’s moral intentionality, or rational consciousness, as much as the effects of truth and power that his or her actions are likely to have upon others in the world. This is a kind of ethical pragmatism, which is attuned to the embodied materialism of a non-unitary vision of the subject.4 This position sees Irigaray’s unspoken but visible feminist link to pragmatism as something very precious. It also enables one to approach dialogically Irigarayan and Deweyan methods and consequently mutually enrich both. On the one hand, there’s the continuity of experience and nature, or a pragmatist constellation of organism(s) and environment (its version of a between-us) that can be enriched by the transcendental projection of a subject, redirected in this process into the world of the other, i.e., into the irreducibility of his/her difference, and on the other, it provides Irigarayan world with a possibility to dynamize the dialectics of sexual difference both in the transcendental as well as natural (empirical) sense. I think it is not an over-interpretation to assert that it is in G. H. Mead’s pragmatism and symbolic interactionism that we can find the first trace of both strands, as being already pre-conceptualized in one single context. Namely, for Mead, the archeology of gesture shows, that this is my first attitude towards other as other: through gesture I already fully (precognitively) respect the other – for (s)he, in his/her radical otherness, is an indispensable part of my ongoing social act, or activity.5 As I argue later in this essay, I think the same is fully applicable to Rorty and Irigaray. Now, following this line of thought, in my Pragmatist Variations on Ethical and Intercultural Life, I’ve already argued about the task of Rorty’s and Irigaray’s “ethical pragmatism” as follows: The most important gesture of Rorty, in my opinion, lies precisely in his inherent openness – despite his firm rejection of any of the classical notions of “experience” – towards ethical possibilities springing from our most natural environments... [A]ccording to Rorty, the principle question in pragmatism is “For what purposes would it be useful to hold that belief.” ... Irigaray’s thought is very close to this account. Irigaray often speaks of the infinity of our embodied selves, which is naturally connected to what Dewey referred to with his notion of “growth” or what Rorty understood with the progress in philosophy. For the French thinker, the only truth we can assert concerning our existence is that our ethical spaces are in becoming and that our capability of transforming ourselves in this process is indeed unlimited, or infinite. 6 Both Rorty and Irigaray indeed offer us a series of very fruitful philosophical and ethical strategies for inaugurating a new epoch in politico-ethical thinking, an epoch I would designate as a democratic culture of love and non-violence. This task is fully attuned with what Dallmayr set forth as a double call to new ethical and intercultural visions of the idea of democracy. The epoch I invoke is

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something we are already imagining in our everyday affairs and practices: in almost all our habitual or practical (intersubjective or intercultural) contexts we always already look for something greater than us – and we call this endeavour (social) hope. Thus, analogous to Roberto Mangabeira Unger’s strategic plan to create conditions for credible alternatives to the neo-liberal economic and political system/s and make room for the social and political reconstruction as stated in his Democracy Realized (i.e., his democratic experimentalism), 7 there is a task at hand also on an ethical (intersubjective) and “spiritual” (also in the sense of intercultural) plane. Only later can this be transposed into concrete socio-political strategies. With the latter goal in view, Unger is at his best in his The Self Awakened.8 But before I go on to make some necessary comparisons and also take the final intercultural step, I wish to first lay out my understanding of the ethico-spiritual sense of democratic experimentalism as related to Irigaray’s and Rorty’s democratic visions. 2. By approaching as well as appropriating the various antagonisms of our age – the many contexts in which violence predominates in its many forms (through language, gender and other intersubjective relations, institutions, religions, ultimately war in its many brutal forms) – it is not an easy task to establish within ourselves a platform for an ethics and politics of otherness that is nonviolent, and which could offer a genuine place for the future conversation or communication of humanity through newly invented language or some other gesture of love and respect for the other. For this reason, when we approach the democratic environments and wish to explore their future possibilities, our horizons are ultimately obstructed by the not yet resolved tensions between the ideals and the power in one of its many forms. Irigaray’s writings explore the possibilities to think the life of democracy beyond extant power relations and open up new spheres of love and justice. In this sense, her work or ouevre is directed toward a new theory of subjectivity that is needed urgently in our times. To point to this tension between ideals and power, it is worth recalling Unger’s The Self Awakened: A radicalized pragmatism is the operational ideology of the shortening of the distance between context-preserving and context-transforming activities. It is thus a program of permanent revolution – however, a program so conceived that the word “revolution” is robbed of all romantic otherworldliness and reconciled to the everydayness of life as it is.9 Also for Irigaray, the task to be accomplished is nothing less than revolutionary: being a part of an ongoing process of democratic education (and we can understand it in a genuine Deweyan sense), it radicalizes and questions our

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everyday frameworks or identities we inhabit. It radically rethinks our models of subjectivity and between-to, based on the primacy of Western ontology, thus unsettling the Western subject at his work in the very horizons of politics and ethics with all kinds of power relations impinging on him. 10 It is beyond doubt that this task is also an intercultural one: clearly today only one tradition (or simply the Western?), or planetary culture, cannot contribute enough wisdom toward “reorganizing the way that humanity lives and produces with a view to preserving the planet and human life and culture,”11 and Irigaray, like other intercultural philosophers (such as Dallmayr), is fully aware of this. From Plato to Hegel, Western humanity (or Western man) has been tragically caught up in the structural paradox: any theory of subjectivity with its imminent ontology was aiming at something bigger than itself but always somehow stayed within the shell of its closed monosubjective or monocultural identity. When constructing the world for the other man (rarely a woman: a society), for other culture(s) (colonialism and religious violence), or nature (exploatation of nature, including nonhuman beings), it was never respectful toward any of them in a genuine way. For maintaining and justifiying this modality of being, Western man invented ideologies, gods and hierarchies, which he then so ardently defended and followed throughout the history. But it was only through Heidegger’s presentation of Being as Gestell, Levinas’s ethics as prima philosophia and ultimately Irigaray’s philosophy of sexual difference that the disastrous consequences of forgetting the (Being of the) other (including nonhuman others and nature) in intersubjective relations were fully articulated within Western philosophy. The culture of true democracy, which, as it were, is the place where our awakening of “consciousness to another stage of its becoming”12 might happen, was an integral part of this paradox. In Irigaray’s I love to you, we are faced with a critique of the above mentioned Hegelian heritage: “we have to practice a different sort of recognition from the one marked by hierarchy.”13 With Hegel and a rich (explicit or implicit) legacy of him, we were subjected to the constant pressures of relations that were dominated by a conflict, whether within the subject (psychoanalysis), between two subjects (struggle for recognition), within a religion (reason vs. faith), or philosophy and language (the notions of subject and self). This unresolved legacy – sometimes consciously, sometimes in a more hidden manner (and with some important exceptions beyond the ones already mentioned, such as Feuerbach, Kierkegaard, Nietzsche, Whitehead, Derrida, Bourdieu...) – permeated the air of Western post-metaphysical thinking up to our present age. To offer a distinct notion of subjectivity and to secure its place within the new intersubjective cosmos (with democracy as its most salient part), it is therefore necessary even today to purify our consciousness of its deposits that prevent our turn to the new “epoch of the alliance between women and men,”14 an alliance or a model, from which the new cultivation of love and peaceful coexistence will spring.

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A radical epoché is therefore needed: it is like a new birth, the awakening of a “spiritual” nature in us. There is a name we can give to this ideal form of our living: it is a culture of democracy, different from the politics/political we have inherited and are now accustomed to and forced to follow; a democracy grounded in the process of our mutual and respectful sharing of love and peace or non-violence. This is what we can find in Rorty’s democratic and utopian ideal as a path to social hope and justice, a path, based not on rationality, institutional design, procedures etc., but rather on a progress of sentiments and sympathies of – in Irigarayan terms – a space of between-us.

3. How is all this related to Rorty’s pragmatism? Rorty’s ethical theory (if it is appropriate to call it a “theory” at all) is one of the most important contemporary contributions in opening up new possibilities for the ethical and social life of individuals. In this, he was indeed following the rich heritage of Dewey’s experimentalistic thinking. In his later writings, such as The Future of Religion and An Ethics for Today,15 Rorty even appropriates the ethical and horizontal (i.e., a sensible) meaning of spirituality and relates it to his neopragmatist ideas. We read in An Ethics for Today about “spirituality” as posited in its old metaphysical (Plato, etc.) and post-metaphysical usages: If spirituality is defined as a yearning for the infinite, then this charge is perfectly justified.... But if spirituality is thought of as an exalted sense of new possibilities opening up for finite beings, it is not. 16 Based on this “spiritual” dimension of his late philosophy, I offer a reading of Rorty which is sensitive to the path of love and non-violence as pertaining to the future culture of democracy. Already in James and Dewey, of course, we find explicit thoughts on the spiritual/religious character of ethics: in James we can derive this sense from his notion of intimacy. The passage reads: the difference between living from a background of foreignness and one of intimacy means the difference between a general habit of wariness and one of trust. One might call it a social difference, for after all, the common socius of us all is the great universe whose children we are.17 Clearly, for James the universe was still spiritualistically designed and inhabited by a superhuman consciousness (also referred to as the wider self or a larger soul). But according to James, we all “inhabit an invisible spiritual environment” and the superhuman consciousness he refers to “has itself the external environment, and consequently is finite.”18 In this sense, James and Rorty speak the same language. It is precisely in James’s subtly nuanced contention that God

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should “but have the least infinitesimal other of any kind beside him”19 that human beings have been for the first time entrusted with a creative (i.e., experimental) role in this process. The process is marked by as many concrete streams of individual experiences, reciprocal (and thus common) experimental attitudes, and subsequent acts as possible. It is a social process, and it is led by our imagination. An ideal of a (common) faith of a human socius grows from it. Finally, in Dewey’s beautifully nuanced words: The things in civilization we most prize are not of ourselves. They exist by grace of the doings and sufferings of the continuous human community in which we are a link.… Such a faith has always been implicitly the common faith of mankind.20 It is from this common ground of pragmatism that I think the idiosyncratic – “spiritual” sense – of Rorty’s ethics grows. It is not necessarily related to any sense of religion, of course. In his “Pragmatism as Romantic Polytheism,” Rorty already wrote about James’s “polytheistic” use of the term “the divine” as being “pretty much equivalent to ‘the ideal.’”21 He was also very supportive of Dewey’s ideas in this regard. What Rorty clearly means by “religion” is religion on the ground, and this undoubtedly secures him a vital place for the future of ethics which must be sensitive to different religious outlooks, and, it goes without saying, to other (secular) versions of faith. I’ve already mentioned the tension between power and ideals in the process of social change: Rorty warns us against confusing “ideals with power” and looks for an ethically (and interculturally, we might add) sensitive “horizontal progress toward a planet wide cooperative commonwealth” rather than a “vertical ascent toward something greater than the merely human.”22 Furthermore, in his The Future of Religion, it is clear that his pragmatism is endowed with a mysterious sense of the holy, “bound with the hope that someday, any millennium now, [our] remote descendants will live in a global civilization in which love is pretty much the only law.”23 With this Rorty has no doubt embarked on a path of love and non-violence as our most precious hope, an indispensable part of any future vision of democracy. Let me now bring Irigaray’s and Rorty’s ethics together. We have seen that a genuine as well as ethically (and “spiritually”)-informed way of thinking is necessarily related to new sensitivities (such as care, sympathy, or more concretely – caress, touch, various gestures, including speech, of course) as a part of our mutual becoming: it is always within a culture (as cultivation) of democracy that we search for greater hope, greater care for and of each other – both being part of our inborn but also socially enacted capacities for future cooperative existence based on love and peaceful coexistence (non-violence). In a civilization of technological and informational plenitude, in which our lives are governed with the insatiable desire for more, we forget to nourish what is most natural and intimate (in James’s sense) in us: for both Irigaray and Rorty,

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natural feelings between mother and child (or maternal love)24 are the finest example of this. Notwithstanding the different views on some aspects of intersubjective relations (on sexual difference, but not on language), they share one very important common feature: moral ideals cannot “be grounded in something larger than ourselves,”25 but always arise in the ongoing progress of our increasing sensitivities – i.e., enriching our sentiments and sympathies toward others. Elsewhere I have interpreted this view of moral progress with a statement of Rorty that “human beings have only bodies and not souls.”26 It is this well known alliance of Rorty with the feminism of Annette Baier that in my opinion gives us Rorty at his best.27 The foremost question for an ethics of today therefore is, how will we – regardless of our sexual, generational, or, as we will see, cultural contexts or milieus – be able to secure a world for us, where our most natural impulses, desires, and hopes will enable us to imagine an ethico-spiritual platform for various future intersubjective and intercultural relations. Any impulse toward democratic experimentalism and visionary thinking must be attentive to this part of our lives and of the lives of others: the culture of democracy in its most elemental form is but respect and care for life. Only later can this elementary ethical layer of democracy be supplemented with various institutional, legal and other socio-political elements. I am not thinking here of an epistemological or any other “priority” of ethics over democracy, but, using Heideggerian or Irigarayan language, I am thinking of a primacy of our relation to Being, a primacy not bound to some ontology, but only to a Rortian hope for a mystery of the “coming into existence of a love that is kind, patient, and endures all things.”28 This is a genuine post-metaphysical ideal, which is common to both (neo)pragmatists and feminists. 4. Finally, I wish to tackle the intercultural potential of this constellation and reflect upon some vital elements of the new culture of democracy. Heinz Kimmerle has observed in his “Practical Aspects of Intercultural Philosophy” that there is an affinity between Intercultural philosophy and the philosophies of difference as they have been worked out in a first approach by Martin Heidegger and Theodor W. Adorno, and more in detail by a number of French philosophers, among them Gilles Deleuze, François Lyotard, Jacques Derrida, Luce Irigaray, and Julia Kristeva. 29 This indeed is a very important observation. Intercultural philosophy, which still could not ascend to the full membership of worldwide philosophy departments, actually is the missing link to the culture of democracy and especially to the spirit of democratic experimentalism we are hoping for. Irigaray is aware of this

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and her affinities toward Indian religion and philosophy (most notably yoga), as well as toward greater acknowledgment of cultural difference are a well known fact.30 Of course, Richard Rorty was not mentioned by Dallmayr for various reasons, the most obvious one being his stubborn insistence, related to his position as an “ethnocentrist,” that neither comparative nor intercultural philosophy could contribute to our better future. It seems to me that Rorty just was not willing to grant importance to more contemporary forms of intercultural thought, those going beyond, as I call it, “culturally defined East-West axis” (in a sense the same holds for Irigaray, since she only mentions selected Asian contexts in her writings).31 Of course, Rorty’s presence in various intercultural contexts speaks for itself: it suffices to mention only the impact he had on various philosophers extending from Iran to China. Thus, I believe that apart from the various short-circuits between Rorty and intercultural philosophy, there is still a very fruitful place for putting Rorty into a dialogue with the latter. In words of an Iranian philosopher, Ramin Jahanbegloo: As a pluralist, Rorty realized that there is no such thing as a single homogeneous culture that functions as an isolated horizon. In other words, he was convinced the future of our global civilization on this fragile and vulnerable earth is dependent on our ability to live together – with our diversities – if not in harmony at least with a capacity of dialogue and mutual understanding.32 For democratic experimentalism to be applied to intercultural contexts – as a place of a future democratic culture of love and non-violence we are hoping for – it is not necessary to remodel or even abandon what Rorty and Irigaray already had in common in our search for a culture of democracy. They offer us some very useful clues for reaching the threshold of new ethical spaces to be inhabited in the future culture of democracy. As both continental/analytic or intercultural philosophers too often claimed, intercultural philosophy is not the symptom of Western philosophy, or a call for its abandonment; on the other hand, it is not a completely different (methodologically, epistemologically, even ethically) way of searching for a new dialogue and mutual understanding between cultures. On the contrary, intercultural philosophy is for each philosophy the very possibility of extending the “we” of our elemental epistemologico-ethical sense to wider cultural and perhaps civilizational contexts – and this is precisely what was already for Rorty one of the principal aims of any ethics. In this regard, care for the other can be understood and extended in the intercultural and not only ethical sense. To conclude: one of the foremost intercultural philosophers, Ram Adhar Mall, once wrote that what we need is a widening of horizons and at the same time an interculturally corrected fusion of horizons (Horizontveschmelzung) without any universalistic claims. If there is an ethical space all cultures today could share it is one related to the care of and respect for life in its many

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forms.33 Finally, this means that we have to be able to widen our ethical (and, consequently, political) horizons to welcome various traditions of non-violence and ethics of intersubjectivity (agape/caritas in Christianity, ubuntu in African philosophy, ahimsa in Indian philosophy, wu wei in Daoism, etc.) and share in this meeting our common commitment to the world where violence it its many forms (from the more structural forms to its most overtly brutal ones) would no longer predominate.34

NOTES 1. Fred Dallmayr, “Liberal Democracy and its Critics: Some Voices from East and West,” in Democratic Culture: Historical and Philosophical Essays, ed. Akeel Bilgrami (London and New York: Routledge, 2011), pp. 2–22. 2. See Annete Baier, A Progress of Sentiments (Cambridge, UK: Cambridge University Press, 1991). 3. Luce Irigaray, Sharing the World (London: Continuum, 2008), pp. ix and xii. I owe my gratitude for this observation to Tomaž Grušovnik. 4. Rosi Braidotti, Transpositions (Cambridge, UK: Polity Press, 2006), p. 14. She also credits with the same term Deleuze’s “ethics of nomadic sustainability” (ibid.). 5. See George H. Mead, Selected Writings, ed. A. J. Reck (Chicago: University of Chicago Press, 1964), p. 286f. (see chapter 18, “The Genesis of the Self and Social Control”). 6. Lenart Škof, Pragmatist Variations on Ethical and Intercultural Life (Lanham, Md.: Lexington Books, 2012), pp. 96–97 (the excerpt is from the chapter “On Unger and Irigaray”). 7. For democratic experimentalism in Unger, see his Democracy Realized: The Progressive Alternative (London: Verso, 2001), p. 5ff. 8. On the “divinized” view of humanity and democracy and democratic experimentalism in Roberto Unger see chapter 8 (“Unger vs. Žižek: Pragmatism and the Limits of Emancipatory Politics”) of my Pragmatist Variations on Ethical and Intercultural Life. For Unger, the task of pragmatism “lies in reconciling the two projects ... the empowerment of the individual – that is to say, his raising up to godlike power and freedom – and the deepening of democracy – that is to say, the creation of forms of social life that recognize and nourish the godlike powers of ordinary humanity, however bound by decaying bodies and social chains.” Unger, The Self Awakened (Cambridge, Mass.: Harvard University Press, 2007), pp. 27–28. 9. Unger, The Self Awakened, p. 57. 10. See Luce Irigaray, Democracy Begins Between Two (La democrazia comincia a due, 1994) trans. K. Anderson (London: Athlone Press, 2000), p. 6. The educational program of personal and social change, as presented in this book of Irigaray is similar to Jane Addams’s and Dewey’s efforts in Chicago’s Hull House. Both efforts are examples of a democratic experimentalism operating at its most practical and concrete levels: in care and attentiveness for the needs of others, and in education toward true culture of democracy. “Education for civil life becomes an education in being, rather than in having: being oneself, being with nature, being in a moment of History, etc. The development of certain values is indispensable for this new form of citizenship: values of

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communication, not only in the sense of the transmission of information but as communication-between” (ibid., p. 9). 11. Ibid., p. 4. 12. Ibid. 13. Luce, Irigaray, I Love To You: Sketch for a Felicity Within History, trans. A. Martin (New York and London: Routledge, 1996), p. 105. 14. Luce Irigaray, Key Writings, p. 169 (“The Age of the Breath”). 15. It is well known that, in The Future of Religion, Rorty weakened his earlier firm atheistic position in favour of a more narrow (political) view of “anticlericalism” (The Future of Religion by Richard Rorty and Gianni Vattimo, ed. S. Zabala (New York: Columbia University Press, 2005), p. 33). 16. Richard Rorty, An Ethics for Today (New York: Columbia University Press, 2008), p. 14. 17. William James, “A Pluralistic Universe,” in William James, Writings 1902– 1910 (New York: The Modern Library), p. 644. 18. Ibid., pp. 770 and 771. See David C. Lamberth, “Interpreting the Universe after a Social Analogy: Intimacy, Panpsychism, and a Finite God in a Pluralistic Universe,” in The Cambridge Companion to James, ed. R. A. Putnam (Cambridge, UK: Cambridge University Press, 1997), pp. 245 and 244. I agree with Lamberth’s thesis that A Pluralistic Universe “can be seen to offer an important vantage on the developing details of James’s philosophical position” (p. 237). 19. Ibid., p. 772. 20. John Dewey, A Common Faith (New Haven, Conn.: Yale University Press, 1934), p. 87. 21. Richard Rorty, Philosophy as Cultural Politics (Cambridge, UK: Cambridge University Press, 2007), p. 29. 22. Rorty, An Ethics for Today, p. 17. 23. Rorty and Vattimo, The Future of Religion, p. 40. 24. See Richard Rorty, Philosophy and Social Hope (London: Penguin, 1999), p. 78. 25. Rorty, An Ethics for Today, p. 8. 26. See chapter 6 of my Pragmatist Variations on Ethical and Intercultural Life. Here I reinterpret and propose in an idiosyncratic reading of Rorty as “semi-naturalist” that he was probably less opposed to American religious naturalism or various forms of empiricism than he frequently claimed in his writings. 27. On some “pragmatist-feminist” alternatives see: N. Rumens and M. Keleman, “American Pragmatism and Feminism,” Contemporary Pragmatism, 7(1) (2010), pp. 129–148. The closest similarity to my reading of Rorty and Irigaray as well as Irigaray’s philosophy of sexual difference in this paper is the perspectivistic position, as (critically and being aware of a danger of inherent essentialist suppositions) explained by the authors as a principle when “men’s and women’s experiences and outlooks differ” (p. 136). I find an important perspective for the issue of democratic experimentalism also in the following passage: “The pragmatist-feminist ethnographer must show a genuine interest in the future, in the alternatives that may just happen, and in perspectives that are not yet realized” (p. 142). 28. Rorty and Vattimo, The Future of Religion, p. 40. Another striking similarity between Rorty and Irigaray is their common love and care for nature. For both Rorty and Irigaray, flowers and birds were/are important companions in their lives: I find this an important testimony to their sensible nature and to the personal ethics that they share, as

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well as to their Romanticism, as expressed in the unlimited spaces flowers are providing and birds are inhabiting. Rorty’s passionate love for wild orchids is a well known autobiographical fact; on Rorty as a birdwatcher see for example Judith M. Green, “On the Passing of Richard Rorty and the Future of American Philosophy,” Contemporary Pragmatism 4(2) (2007), pp. 35–44; on Luce Irigaray and birds see “Animal Compassion,” in Animal Philosophy, ed. Peter Atterton and Matthew Callarco (London: Continuum, 2008), pp. 195–201. Irigaray once wrote that human freedom resembles “the sap that comes out of a delicate plant, and that grows or withers depending on whether or not the surroundings in which it appears are favorably disposed towards its existence, its becoming” (Luce Irigaray, Sharing the World, pp. xix–xx). It seems to me that precisely in this both Rorty and Irigaray are truly the guardians of this aspect of human freedom. 29. Heinz Kimmerle, “Practical Aspects of Intercultural Philosophy,” in Intermedialities: Philosophy, Arts, Politics, ed. H. Oosterling and E. Plonowska Ziarek (Lanham, Md.: Lexington Books, 2011), p. 137. 30. See Luce Irigaray, Between East and West: From Singularity to Community (Entre Occident et Orient, 1999), trans. S. Pluháček (New York: Columbia University Press, 2002). Orig.). For the criticism of orientalism in Irigaray see P. Deutscher, “Between East and West and the Politics of ‘Cultural Ingénuité’: Irigaray on Cultural Difference,” Theory Culture Society 20(3) (2003), pp. 65–75. Let me add that also Unger acknowledges the impotance of an intercultural shift: “A breakthrough, bearing a message of universal value to humanity, such as the message conveyed by this worldhistorical reorientation in political and moral thought, cannot be the privileged possession of any civilization or any time.” In India and China, this prospect is further underpinned by “support in the history of a great, ancient, and distinctive civilization, bearing spiritual ideals capable of outlasting both foreign conquest and domestic upheaval” (The Self Awakened, pp. 254 and 84–85). For a more detailed analysis of Unger and Intercultural philosophy see also chapter 8 of my Pragmatist Variations on Ethical and Intercultural Life, which also includes a list of references on non-Western democracies. 31. On Rorty and intercultural/comparative philosophy, see Lenart Škof, “Thinking Between Cultures: Pragmatism, Rorty and Intercultural Philosophy,” Ideas y Valores 138 (2008), pp. 41–71. For Rorty and intercultural philosophy, see his “Philosophy and the Hybridization of Cultures,” in Educations and Their Purposes: A Conversation among Cultures, ed. Roger T. Ames and Peter D. Hershock (Honolulu: University of Hawaii Press and East-West Philosophers Conference, 2008), pp. 41–53; Anindita Niyogi Balslev, Cultural Otherness: Correspondence with Richard Rorty (Atlanta, Georgia: Scholars Press, 1991); Wei Zhang, Heidegger, Rorty and the Eastern Thinkers (Albany: State University of New York Press, 2006); Enrique Dussel, The Underside of Modernity: Apel, Ricoeur, Rorty, Taylor and the Philosophy of Liberation, trans. and ed. Eduardo Mendieta (Amherst, N.Y.: Humanity Books, 1996); Yong Huang, ed., Rorty, Pragmatism, and Confucianism: With Responses by Richard Rorty (Albany: State University of New York Press, 2009). See also Jung H. Lee’s book review on Rorty, Pragmatism, and Confucianism: “Although Rorty does not go so far as to suggest that the two traditions are logically incompatible, I would argue that the differences go so deep that one could reasonably conclude that the normative commitments of Confucians and Rortians are incompatible.” (Notre Dame Philosophical Reviews (9 September 2009), at http://ndpr.nd.edu/news/24165-rorty-pragmatism-and-confucianism-with-responsesby-richard-rorty/. This is a fine example of an ethnocentric approach, pointing only to the differences (such as liberal democracy vs. traditional forms of Confucian morality, etc.) and not being sensible enough to what two (although distant and “epistemologically”

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different) traditions could share and contribute toward our common future culture of democracy. 32. Ramin Jahanbegloo, “Richard Rorty: living in dialogue,” Open Democracy (20 June 2007), available online at http://www.opendemocracy.net/globalization/ visions_reflections/richard_rorty. Jahanbegloo’s article is based on a series of letters (“Letters to Americans”), which have been exchanged between him and Rorty in 2004. However I do not agree with the other part of Jahanbegloo’s observation on Rorty, namely when he writes: “This quality of Rorty’s, which made him such an attractive human being, was his positive capability to understand and to think the paradigm of interculturality as the condition sine qua non of the variety and variations of our world. He knew well that we are faced with an absolute need for an intercultural imperative in order to understand the cultural diversity in today’s world. Therefore Rorty’s search for democracy was also a quest for a plural world not in spite of our differences and divergences, but thanks to our differences and divergences. In this respect, his philosophy was a result of border-crossing and dialogue with other cultures” (ibid.). 33. See Ram Adhar Mall, Intercultural Philosophy (Lanham, Md.: Rowman and Littlefield, 2000). Mall pledges for the analogical heremeneutics that “does justice to an understanding of the other” (p. 3). 34. For various critiques of violence see On Violence: A Reader, ed. Bruce B. Lawrence and Aisha Karim (Durham, N.C.: Duke University Press: 2007). For a more “affirmative” stance toward violence within the contemporary political thinking cf. Slavoj Žižek, Violence (London: Profile Books, 2008). See also short but exceptional work againt violence by Stephane Hessel, Indignez-vous! (Montpellier, France: Indigène, 2010).

Lenart Škof Department of Philosophy University of Primorska Titov trg 5 6000 Koper Slovenia

Contemporary Pragmatism Vol. 9, No. 2 (December 2012), 301–320

Editions Rodopi ©2012

Ambedkar and the Constitution of India: A Deweyan Experiment Keya Maitra

This essay explores the democratic ethos championed by Dewey in the context of the Indian constitution. Ambedkar, the Chairman of the Drafting Committee of the Indian Constitution, studied with Dewey at the Columbia University during 1913–16, and often credits Dewey for a lasting impression on his thinking. I focus on two examples of Ambedkar’s efforts to exercise democratic experimentalism. The first is the provision in the Indian Constitution dealing with remedial treatment for disadvantaged citizens, variously called ‘positive discrimination and compensatory discrimination’. The second is the attempted passage of the Hindu Code Bill in 1951 for comprehensive reform to clarify, standardize and streamline Hindu personal law. The Indian Constitution can be taken as a location where the Deweyan robust sense of democracy is reflected in its aim for an inclusive, associated public space, in no small measure due to Ambedkar’s Deweyan experiment.

Mrs. Savita Ambedkar tells a touching story of Ambedkar happily imitating John Dewey’s distinctive classroom mannerisms – thirty years after Ambedkar sat in Dewey’s classes. It is impossible to find in Ambedkar’s life story any hint of a living guru or a personality which dominated him, but here at least is a suggestion that he was fond of both Dewey the philosopher and Dewey the man. – Zelliot (2001, 84)

1. Introduction This paper explores the theme of democratic experimentalism in the context of the Indian constitution – an important location given that India is the most populous democracy of the world today – through Dr. B. R. Ambedkar’s involvement with it. From the perspective of the present volume, this exploration offers an important opportunity since Dewey’s own writing on democracy has been argued to be somewhat thin in terms of clear delineation of its institutional implications. Further, as Simon points out in his essay in this volume, even in much of the literature on Dewey’s liberalism, “the institutional implications of his work remain elusive” (p. 5). What makes this project relevant

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is also the fact that it allows us to explore the democratic ethos championed by Dewey in the context of Indian constitution. This is because Dr. B. R. Ambedkar, the Chairman of the Drafting Committee of the Indian Constitution, studied with Dewey at Columbia University between 1913 and 1916 and often credits the latter for having a lasting impression on his thinking. Given that Dewey’s influence on Ambedkar’s general thinking has remained understudied, my focusing only on the context of Indian Constitution might seem misguided. I believe, however, that such a focus has two advantages. Such a focus would allow us to assess Mukherjee’s claim that “American neopragmatists like Stanley Fish, were they to pay attention to this student of Dewey’s [viz., Ambedkar], would need to revise their contention that ‘if pragmatism is true it has nothing to say to us; no politics follows from it or blocked by it; no morality attaches to it or is enjoined by it’” (Mukherjee 2009, 348). If we are able to find a sustained engagement with the ethos of pragmatism and Deweyan democratic experimentalism in at least some aspects of the Indian Constitution, then that would seem to provide clear evidence for pragmatism’s institutional and political impact. Further, those who have tried to explore Deweyan influences in Ambedkar’s general thinking seem to have focused simply on those passages in Ambedkar’s writings where he is referring to and/or acknowledging Dewey or explicitly drawing from his ideas. This approach has limited these scholars, Kadam and Mukherjee, for example, look at Dewey’s Democracy and Education exclusively since most of Ambedkar’s explicit and implicit Dewey quotes come from this work. I think this might limit us and therefore keep us from exploring Ambedkar’s Deweyan influences to their fullest extent. This has also encouraged some of these Ambedkar scholars to argue how Dewey provided a ‘different lens’ – different from that of Orientalism – through which Ambedkar came to see the world (Mukherjee 2009, 345). What I find problematic with this articulation is that it seems to overlook the formative roles Ambedkar’s experiences of growing up as a member of the Mahar community – as an untouchable – play in the fashioning of Ambedkar’s perspective. I find Zelliot’s interpretation more reasonable when she argues that Ambedkar was quite mature by 1913 at the age of 23 when he went to Columbia and came in contact with Dewey among his other professors. So instead of saying Dewey’s thinking provided him a different way to look at the world, it might be more accurate to say that in Dewey’s thinking on democracy Ambedkar’s already formed socio-political dispositions and sensibilities found a home. To quote Zelliot, “It is more likely that in those early years in America [Ambedkar’s] own natural proclivities and interests found a healthy soil for growth, and the experience served chiefly to strengthen him in his lifelong battle for dignity and equality for his people” (Zelliot 2001, 85). Thus Ambedkar’s American experience as well as his Deweyan influences reinforced his already formed convictions and intellectual dispositions. Indeed, it is Ambedkar’s commitment to achieve dignity and equality for his people, the untouchables,

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that underlines his interest in Dewey as in Dewey’s thinking on the nature and goals of democracy Ambedkar found the only viable means of attaining his vision of an inclusive, democratic India. This also convinced Ambedkar of the constitution’s role in enabling and safeguarding this vision. Hence follows his democratic experimentalism with the Indian Constitution. Even though India gained independence on 15 August 1947, it became a working democracy with the official inauguration of the Indian Constitution on 26 January 1950. After the adoption of the Indian Constitution, the first milestone in the functioning of Indian democracy was the holding of the first general elections from October 1951 until March 1952. Along with optimism and idealism, there were also “fears that democracy and (even centralized) federalism would not prove viable in India’s endless diversity” (Austin 1999, 16–17). More concretely, the fear that democracy might be a purely ‘theoretical’ and therefore an ineffective or even useless concept for the ‘politically immature’ masses of Indians1 was a very real one among the political elite of India. Thus, even though India envisioned itself as a democracy, such a vision lacked a clear definition or a necessary conviction in these early days. The argument that I want to propose in this paper is that the inception of India’s democratic experimentalism began a long time before the first general elections. No one’s conviction and commitment were more central to the shaping of this democratic experimentalism than that of Ambedkar, the chairman of the Drafting Committee for the Constitution that received its charge in 1946 from the Constituent Assembly. To appreciate Ambedkar’s exact influence, it is important to note that many political elite involved in India’s independence movement in the early twentieth century and in the shaping of the nature of Indian democracy in the early stages of its sovereignty also expressed interest in changing the plight of the poor, uneducated, peasant masses including the untouchables. However, what sets Ambedkar apart is how integral he conceived this goal to the success of India’s democratic experimentalism. His thinking in this regard truly emanates the Deweyan conviction that democracy is not just a political concept narrowly conceived in terms of free elections and voting, but a far more basic concept defining human nature itself in terms of sociality. This conviction thus results in Ambedkar’s lifelong focus on articulating a vision of India’s democratic landscape with complete participation of and communication among all communities including the untouchables. This conviction also results in Ambedkar’s commitment to the procedural aspects of India’s democratic experimentalism as reflected in his participation in the government of first Prime Minister Nehru. I want to focus on two examples of Ambedkar’s efforts to exercise democratic experimentalism. The first has to do with the provision in the Indian Constitution that deals with remedial treatment for disadvantaged citizens, variously called ‘positive discrimination and compensatory discrimination’ (Austin 1999, 38). The second is the attempted passage of the Hindu Code Bill in 1951. This Bill proposed comprehensive reform to clarify, standardize and

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streamline Hindu personal law. Both these examples, when viewed in light of the Dewey-Ambedkar perspective of democracy where democracy is not just a matter of general elections but is the nature of sociality itself, become signature attempts to bring India to fulfill its democratic ideals and goals. This is also because for Ambedkar the goal of independent India was not to return to its ‘golden’ past, the way Gandhi and many Hindu elite had envisioned, but a true democracy where it serves as the idea of the community life itself. Exploring the range of meanings of democracy within the context of Indian democracy also becomes pertinent in the light of certain recent events within Indian political landscape. More specifically let us take the 1992 demolition of the Babri mosque by fundamentalist Hindus associated with the political party of BJP in the north Indian state of Uttar Pradesh. A prevalent attitude among the political elite of India, even among those critical of this event, is that it took place within the constitutional and democratic framework in being in at least implicit conformity with the wishes of India’s Hindu majority. But what this overlooks is the fact that this attitude involves a clear reinterpretation of key terms like democracy and rights within the political discourse. As Bhargava convincingly argues, through this reinterpretation ‘democracy’ is reduced to mean ‘mobocracy’ or a ‘majoritarian’ political agenda at best (1994, 62–64). In this backdrop it seems quite worthwhile to explore the nature of India’s democratic experimentalism in its early stages. The main thesis of this paper is going to be that Ambedkar was one of the principal architects of this experimentalism, and his approach was shaped in an essential way by Deweyan ideals of democracy. In the next section, I will briefly outline a few characteristics of Deweyan thinking on democracy. The following section will introduce Ambedkar’s evolution as the leader of the Untouchables and trace Deweyan influences in this evolution. In the section after that, I will focus on Ambedkar’s involvement with the Constitution of India and the democratic procedures in their early formative period of the Indian nation. I will conclude by noting that the Indian Constitution can indeed be taken as a location where the Deweyan robust sense of democracy is reflected in its aim for an inclusive associated public space where everyone is enabled to participate and further that it is in no small measure due to Ambedkar’s Deweyan experimentation. 2. A Brief Overview of Dewey on Democracy Democracy, as Dewey scholars point out, has been at the core of the nerve center of Dewey’s thinking in all fields.2 In that sense the theme of democracy is the very expression of Dewey’s pragmatism. Democracy was never a mere form of government where the majority rules for Dewey. To maintain that would be to say that “a home is a more or less geometrical arrangement of bricks and mortar” and to overlook that “[d]emocracy is a form of government only because it is a form of moral and spiritual association” (Dewey EW 1: 240, emphasis added). Thus, democracy is not just a form of political sovereignty

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ruled by the majority. It is also not about ‘counting the votes to see where the majority’ lies. Rather the heart of democracy is ‘in the process by which the majority is formed’ and more accurately in the participation of every member. For Dewey democracy is not a state of political reality that consists of ‘numerical aggregates of individuals’. What is most problematic in this aggregative understanding of democracy – even though shared widely – is the fact that human engagement with democracy is reduced to a mere accident here. Further, the human individual is conceived as fully formed in its non-social givenness, ‘complete in itself’ merely entering a contract with other such ‘isolated’ atomistic individuals to form a democratic government to achieve goals that – though they might be shared commonly – are envisioned and grounded in the isolated atomistic conception of the individual. For Dewey, the meaning of true democracy can’t be any further from this description which for him is a product of the misguided process of philosophical abstraction, or we might add, hypothetical thought experiments. The necessity of democracy for human society follows from what Dewey takes to be the essential nature of human beings, namely, ‘the essential sociality of human beings’. In this regard democracy is not a mere option for sociality; rather it underlies the very grammar of sociality itself and in so doing it becomes constitutive of essential humanity. He unpacks this essential sociality in terms of a ‘reciprocally’ internal relation that constitutes the dynamics between the individual and the society. Another way to capture this reciprocality is to think of it in terms of an interdependence where one cannot be viewed as ontologically prior or more foundational to the other. This reciprocality between individuals and society implies that one cannot exist without the other. Indeed, the normative force of this essential sociality of the human individual is the fact that “the individual embodies and realizes within himself the spirit and will of the whole organism” (Dewey EW 1: 236). For our purpose, the most important implication of this reciprocality is how the destinies, envisioned dreams and their realizations come to be integrally intertwined such that no individual can realize her dreams until they are conceived through the social whole and conversely no social good is realized until being embodied by each individual. 3 A clear implication of this reciprocality at the level of democratic governance, especially in the context of representational democracies, is the fact that the clear distinction between the governed and the governors, between the legislature and the legislated remains no longer viable. In Dewey’s words, “Government does not mean one class or side of society set over against the other. The government is not made up of those who hold office, or sit in the legislature. It consists of every member of political society” (EW 1: 238). In emphasizing the essential sociality of human individuals, Dewey does not undermine the room for individualism within the democratic society. Indeed it is only within a truly democratic environment a true individualism, where “every human being is capable of personal responsibility and individual initiative” can be exercised. This is the heart of what Dewey means by the

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ethical ideal of democracy which consists of the democratic faith in the capacity of every human being for intelligent action when certain enabling conditions are met. As Dewey writes, it is a “working faith in the possibilities of human nature” as embodied in “every human being irrespective of race, color, sex, birth and family, of material and cultural wealth” (LW 14: 226). Now one might think that this faith is a purely blind faith arrived as a result of pure a priori reasoning. For Dewey however, this faith is ‘acquired from his surrounding’ and it stands for the “faith in the capacity of the intelligence of the common man to respond with commonsense to the free play of facts and ideas which are secured by effective guarantees of free inquiry, free assembly and free communication” (LW 14: 227). In this regard Dewey comes to call true democracy ‘radical’ as its end “requires great change in existing social institutions, economic, legal and cultural. A democratic liberalism that does not recognize these things in thought and action is not awake to its own meaning and to what that meaning demands” (LW 11: 299). The radicalism of true democracy is not only in its end but also in its means, and its process that need to include everyone. Dewey also highlights the dynamic nature of both the end and means of democracy within a social context that is never given in a static and fixed fashion. In fact, as Mukherjee notes, goals and ideals become ‘static’ when individuals in a society are ‘impervious to the interests of others’ (2009, 352). Neither the end nor the means are given a priori in a fixed and static fashion but rather have to be contested and deliberated and determined within the specific parameters of a particular social context. Democracy thus requires revitalization of local communities that would foster the “development of multiple publics where citizens can engage in debate and deliberation together” (Bernstein 2010, 81). Given this, what democratic spirit and ethos would call for is a certain kind of flexibility, openness, revisability and above all fallibility which are hallmarks of a truly deliberative and pragmatic collaboration. Democracy in this sense emerges as a “reflexive form of community cooperation.” For Dewey, “the task of democracy is for ever the creation of a freer and more humane experience in which all share and to which all contribute” (LW 14: 230). As Bernstein summarizes, “Democracy requires a robust democratic culture in which the attitudes, emotions and habits that constitute a democratic ethos are embodied” (Bernstein 2010, 86). Bernstein outlines some of the common criticisms of Dewey’s thinking on democracy. Even though Dewey emphasizes the necessity of an inclusive plan for a democratic society, he does not provide any details about the nature or implementation of such an inclusive plan. Further, as Bernstein writes, “despite Dewey’s persistent demands to deal with concrete problems and to specify the means of achieving ends-in-view, Dewey never specified those ‘thorough-going changes in the set-up of institutions’, nor did he specify the ‘corresponding activity to bring the changes to pass’” (2010, 83). In other words,

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What Dewey does not offer is how to change the exclusionary and isolationist group so that it will either see the folly of its ways or, conversely, be defeated so that the power it controlled can be shared more equitably. Perhaps the conservative climate of the American academy forced Dewey to abstain from tackling those issues directly, although he frequently speaks of them in a roundabout way. ... Ambedkar, however, did not have the luxury of circumspection, given that it was his community that was excluded from all forms of social participation. (Mukherjee 2009, 362–363) It is here that the Ambedkar’s democratic experimentation especially in relation to his involvement with the Indian Constitution and aspects of Indian government becomes most relevant. 3. Ambedkar as the leader of the Untouchables Who are the untouchables? They occupy the lowest ranks of the Hindu Caste System and thereby the fateful destiny of being regarded as the ‘outcaste’ by the top three castes – referred to as the caste Hindus in spite of worshipping the Hindu gods and observing the Hindu festivals. They come to be referred to as the untouchables since their very touch – not just physical but ‘shadow and even voice’ – was considered polluting for caste Hindus. Ambedkar’s biographer Dhananjay Keer provides a vivid description of the social disabilities forced on the untouchables by the Hindu Caste System: They were forbidden to keep certain domestic animals, to use certain metals for ornaments, were obliged to wear a particular type of dress, to eat a particular type of food, to use a particular type of footwear and were forced to occupy the dirty, dingy and unhygienic outskirts of villages and towns for habitation where they lived in dark, insanitary and miserably smoky shanties or cottages. (Keer 1954, 1) Since their very touch was polluting, they were denied the use of public wells, often public roads and their children were not allowed into public schools for caste Hindu children. “These untouchable Hindus were treated by the caste Hindus as sub-humans, less than men, worse than beasts” (Bhardwaj 2002, 43). In such a social climate of hatred, oppression and exclusion, Ambedkar was born to a Mahar family, an untouchable caste in Western Indian state of Maharashtra in 1891. A Marathi, the local language, proverb characterizes the Mahars as eaters ‘of forbidden food’. “The eating of carrion was perhaps an inevitable consequence of a traditional duty of the Mahar as village servant, that of dragging carcasses out of the village” (Zelliot 2001, 55). A Mahar had another traditional duty that was considered ‘polluting in nature’, namely, ‘that of bringing fuel to the’ cremation grounds where caste Hindus cremated their

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dead relatives’ bodies. Being born to a middle class family, Ambedkar was educated in the local school and, in spite of suffering ‘life-defining humiliation’ during his formative years, went on to become the first college graduate in the Mahar community when he graduated from the prestigious Elphinstone College in Bombay (Jaffrelot 2005, 3). His incredible intellectual abilities and promise, and academic achievements earned him the financial support from the Maharaja of Baroda, Sayajirao Gaikwad, for his stay at Columbia University where he earned a PhD in economics. Even during his education at Columbia this ‘gifted and innovative son’ of Mahar and India stayed focused on understanding the socio-political underpinnings of the Caste System and changing the plight of his community – the untouchables who were marginalized in every aspect of communal life. What sets Ambedkar apart from other leaders of Mahar among other untouchable communities who worked towards the goal of ending social oppression for their untouchability is the fact that he was the first one to clearly envision that change has to be sought through political means and not religious means. Zelliot proposes that it could be because of his ‘Western education’. I believe it is not simply for his Western education, because that would apply to Gandhi as well since the latter too benefited from a Western education, but envisioned a solution that drew deeply from his Hindu ethos. Instead, Ambedkar’s commitment followed from a more specific aspect of his Western education, namely, his conviction that Deweyan democratic ideals and their associated means and goals are the only viable means of social change. This results in Ambedkar’s ‘intensely secular humanist mission’ with its secure confidence that only ‘a pragmatic, [and] flexible democratic system’ can raise status of untouchables and effect improvements (Zelliot 2001, 11). This confidence fueled Ambedkar’s life-long and indomitable commitment to the fashioning of various instruments of Indian democratic system until his death in 1956. This involvement included: his 1919 presentation before the very important Southborough Committee on Franchise commissioned by the British Government to review and revise voting rights of Indians especially the minorities; his participation in the Round Table conferences of early 1030s, especially the Second one in 1931 where Ambedkar was able to convince the British Government for separate electorate for the Untouchables though subsequently he had to relinquish this demand due to Gandhi, who feared that this measure was going to threaten Hindu unity (Jaffrelot 2005, 4; see also 56–59); his role as the chairman of the Drafting Committee of the Indian Constitution; his role as the first Law Minister in the cabinet of Prime Minister Nehru; and also the numerous political parties he founded to use as a platform to enable the full participation of the marginalized and backward communities within the Indian democratic landscape. In the section after the next, I will elaborate on two specific items from this long list of Ambedkar’s democratic experimentalist engagements. But, in the following section, I comment on the Deweyan influences on Ambedkar’s overall mission.

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4. Ambedkar’s Deweyan Heritage I want to open the discussion of Ambedkar’s Deweyan heritage by noting an interesting difference in Dewey’s and Ambedkar’s respective cultural backgrounds and expectations. For Dewey, writing in the Western context where individualism is readily assumed as the point of departure without needing any further argumentative support, it seemed radical indeed to propose that individuals presuppose their ‘essential sociality’. However this movement of reasoning might not have a natural carry over to Ambedkar’s context. Especially if we take into account the fact that unlike the atomistic, non-social conception of the individual dominant in Dewey’s cultural background, the cultural background of Ambedkar is far less individualistic, such a carry over might seem forced. In fact, since the familial and communal roles are often taken as more primary factors shaping an individual’s self-identity within the Indian social context, the recognition of our essential sociality might seem far less radical here. However, what Ambedkar came to realize is that this collectivist orientation did not result in valuing the ‘essential sociality’ of all human beings; rather what his own experiences had shown was that this orientation resulted in debilitating divisiveness and exclusivism between the groups and castes. Probably that is the reason why Ambedkar emphasizes a further distinction between ‘anti-social’ and ‘non-social’ spirits in addition to Dewey’s primary distinction between individuals as ‘social’ and ‘non-social’ human beings. “An anti-social spirit is found wherever one group has ‘interests of its own’ which shut it out from full interaction with other groups, so that its prevailing purpose is protection of what it has got. This anti-social spirit of protecting its own interests is as much a marked feature of the different castes in their isolation from one another as it is of nations in their isolation” (Ambedkar 1936, 52). The threats that non-social individualism presents are somewhat different though not unrelated from the threats that anti-social groups and spirits present. While antisocial groups acknowledge our sociality in some respects, they don’t consider that to be foundationally all-pervading. This might give a reason for Ambedkar’s focus on the idea of ‘endosmosis’ in Dewey’s writing as it specifically addresses the need for open and free communication and movement of ideas between communities resulting in the sense of shared community between the touchables, i.e., the caste Hindus, and the Untouchables. In this regard, it is also important to note the commonalities between Dewey’s and Ambedkar’s attitude towards education and curriculum. In his Annihilation of Caste, Ambedkar quotes Dewey when he writes, Prof. John Dewey, who was my teacher and to whom I own so much, has said: “Every society gets encumbered with what is trivial, with dead wood from the past, and with what is positively perverse.... An individual can live only in the present. The present is not just something which comes after the past; much less something produced by it. ... The study of

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Mukherjee (2009, 350) notes that in the process of making this point Ambedkar in fact omits part of Dewey’s original sentence. Dewey’s sentence as quoted by Ambedkar reads: “The Study of past products will not help us understand the present, because the present is not due to the products, but to the life of which they were the products.” (Mukherjee 2009, 350, quoting Dewey). Mukherjee suggests that this oversight on the part of Ambedkar is intentional since unlike Dewey, Ambedkar does think that in the Indian context, “the present is due to the products [of the past],” namely, the Vedic texts. In making this point Mukherjee argues that Ambedkar here seems to be extending Dewey beyond his ‘general and ‘safe’ context’ to the context of concrete Hindu ‘sacred and canonical texts’. However, I am not sure that Ambedkar needs to treat the ‘products’ of the past as given for that purpose. I think given the pragmatic attitude that Ambedkar shares with Dewey, he couldn’t have simply argued that the present ‘is due to the products [of the past]’ but more accurately that it is shaped due to the lives of the past. Mukherjee here seems to want to treat ‘products’ of the Hindu past – the Vedic texts and Shashtras – as given. But to do so is to overlook the distinction between the present as given and the present as imagined/conceived that is crucial to a pragmatic project. The point is that if we think of the present as something which is ‘due to the products’ of the past, then it becomes difficult to conceive of that present as a location for change that both Ambedkar and Dewey are striving for. So while Ambedkar is extending Dewey here, his general vision emanates a Deweyan pragmatism. I have also noted Dewey’s emphasis on flexibility, revisability and acknowledgement of fallibility in the creation of the democratic culture that fosters a kind of like-mindedness without stifling open-mindedness and diversity of opinions between its members, groups and communities. Ambedkar shares this Deweyan insight whole-heartedly. Drawing from the theme of ‘social endosmosis’ that Dewey mentions only once in his Democracy and Education, Ambedkar argued that for the prospect of Indian democracy the untouchables need to establish kinship and free channels of communication with other communities and end their state of isolation. This is because democracy for him “is primarily a mode of associated living, of conjoint communicated experience. It is essentially an attitude of respect and reverence towards fellowmen” (Ambedkar 1936, 57). For Dewey, ‘endosmosis’ represents free communication and ‘interaction between social groups’. As Mukherjee establishes, ‘social endosmosis’ ‘becomes a major heuristic tool’ that Ambedkar comes to use repeatedly and forcefully in his writings (2009, 353). Social endosmosis allows communication and ‘free circulation of individuals’ thereby giving individuals opportunities to form communities with individuals from diverse socio-

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economic backgrounds thereby establishing a sense of shared community and shared purpose. From this perspective, both Ambedkar and Dewey are quite suspicious of tradition worship and are quite doubtful about the possibility and usefulness of eternal truths. In their shared pragmatic spirit, they take each individual to be “unique, incommensurate, and continuously unfolding, making and remaking [her] world through education and communication.” Such a human being “is not the atomistic, isolated individual of Enlightenment thought, but ... [is] always already embedded in the social.” Thus there is a reciprocality between a person and her essential sociality that we alluded to while discussing Dewey’s ideas on Democracy in the previous section. Indeed, as Mukherjee notes, endosmosis captures this reciprocality by allowing us to “hold simultaneously the two apparently contradictory ideas of separateness and conjointness” (2009, 352). In spite of being embedded in such a way, the individual and her destiny are not a given or fixed as a foregone conclusion. In fact both Dewey and Ambedkar acknowledge that fact that ‘every new idea’ has ‘its origin in an individual’. Their point is that only through sociality each individual can be the source of a new idea, and of change. In fact, Dewey thinks that the celebrated liberal ideals of liberty and equality, when ‘isolated from communal life’ lead to ‘mushy sentimentalism’ and become contentless. In the comparative analysis of Dewey and Ambedkar we must also acknowledge the similarity in their pragmatic frame of mind and intellectual attitude. And nowhere was this similarity more evident than in their thinking on the role of education within a truly democratic society. Bernstein comments that Dewey “was a sharp and persistent critic of sentimentalism” (2010, 86). This estimation would apply equally to Ambedkar as well. This, in fact, underlines Ambedkar’s response to Gandhi’s various philosophical positions, especially relating to the untouchables. Even though Gandhi is often credited with bringing the abject treatment of the untouchables to the forefront of the national consciousness of India, through the coinage of the term ‘Harijan’ – God’s people – for untouchables, it is very interesting how he envisioned the participation of untouchables in this conversation. Instructive in this regard is Ambedkar’s interaction with the Harijan Sevak Sangh (Society of Servants of Harijans) – “an organization started by Gandhi for the welfare of the Untouchables” (Mukherjee 2009, 366). When Ambedkar expressed interest in serving on this Society, he was denied on two grounds. First, in Gandhi’s opinion, “The welfare work for the untouchables is a penance which the [caste] Hindus have to do for the sin of Untouchability.” Further, Gandhi argued that since the money that was raised for the Society was contributed by the caste Hindus, it was determined that caste Hindus alone must serve on this Society (Ambedkar 1945, 139, my emphasis). After quoting Gandhi’s ingenious position, Ambedkar comments, “Mr. Gandhi does not realize how greatly he has insulted the Untouchables by his doctrine, the ingenuity of which has not succeeded in concealing its gross and coarse character” (Ambedkar 1945, 139). Even if one gives Gandhi the benefit of the

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doubt and argues that he was well meaning and well-intentioned in this, what one cannot doubt is the incredibly sentimental nature of Gandhi’s response. What is striking is Gandhi’s conviction that Untouchables – whose plight the Society is aiming to change – cannot be a contributing participant in the shaping of the Society. Surely, it appears that the social injustice is viewed here as a religious evil needing to be addressed by the sentimental and emotional vocabulary of penance without having any implications for India’s democratic landscape – either politically, or economically, or even socially. As early as 1919, Ambedkar expressed his ideas clearly when he wrote “endosmosis among the groups makes possible a resocialization of once socialized attitudes. In place of the old, it creates a new like-mindedness, ... essential for harmonious life, social or political and ... it depends upon the extent of communication, participation or endosmosis” (quoted in Mukherjee 2009, 354). Both Ambedkar and Dewey articulate the nature of sharing required for a democratic society as not like the physical sharing of a cake or a pie, but a sharing that enables mutuality and takes the shape of open and free communication. Unlike a cake or a pie, the democratic society is not an end product to be enjoyed – shared – once it is prepared and presented; on the contrary the very marker of a democratic community/society is the dynamic space of engagement that fosters and encourages involvement through fluid channels and through which each member is “irrigated or suffused with the nutrient of each other’s creative intelligence” (2009, 352, emphasis added). 5. Ambedkar and the Constitution of India Time has come now to fulfill the promise I have repeated in this paper: to elaborate on the specific contexts that demonstrate Ambedkar’s implementation of Deweyan democratic experimentalism. Austin, in his seminal work on the Constitution of India, writes that learning about the Indian Constitution ‘truly opens a window into India’. In a similar spirit, my goal is to look at certain aspects of the Indian Constitution as a window into Ambedkar’s democratic experimentalism. We begin with a brief introduction to the Indian Constitution. The Constituent Assembly charged to draft the Constitution began its work in December 1946 (Austin 1999, 4). Austin outlines the sources that the framers of Indian Constitution drew explicit and implicit inspirations from. First was the Government of India Act that was passed by the British Parliament in London in 1935, establishing a centralized federal system involving all the Indian provinces (while keeping the ultimate power in British hands) that served as the foundation document. The Constitution’s ‘spirit’ came from a different source: “the Objective Resolution adopted during the December 1946 Assembly session...” (Austin 1999, 6). Among other things, this resolution “called for adequate safeguards for minorities, depressed and ‘backward’ classes and underdeveloped and tribal areas” (Austin 1999, 6). The Indian Constitution “may be summarized as having three strands: protecting and enhancing national unity and

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integrity; establishing the institutions and spirit of democracy; and fostering a social revolution to better the lot of the mass of Indians. The framers believed ... that the three strands are mutually dependent and inextricably intertwined” (Austin 1999, 6). It is the longest Constitution of the world, having 370 articles, ten schedules and over 300 pages. Under this Constitution, citizenship is ‘single and national’, and no state citizenship is allowed, unlike the case in the United States. As the Chairman of the Drafting Committee, Ambedkar argued that the Constitution needed to be “both unitary as well as federal according to the requirements of time and circumstances” (1989, 7:1, 34). How influential was Ambedkar in the process of producing the Indian Constitution as the chairman of its Drafting Committee? This has been a contentious issue especially with Ambedkar’s detractors like Arun Shourie (1997) arguing that since the Drafting Committee didn’t compose the primary texts of the articles, but the various specialized subcommittees did and further the final version had to be discussed and passed in the plenary sessions of the Constituent Assembly, Ambedkar’s role in the shaping of the Indian Constitution was merely peripheral. On the other side of the debate, as Jaffrelot documents, are a number of scholars who argue that Ambedkar played a central role in the shaping of the Constitution and that “it was only by virtue of his competence that Ambedkar was appointed head of the Drafting Committee” (2005, 107). A direct engagement with this debate falls outside the purview of this paper since my contention has not been to show Ambedkar as the ‘father’ of Indian Constitution. Given the fact that Ambedkar was a member of multiple of the subcommittees and also the fact that as a chairman of the Drafting Committee he ‘guided and channelled’ all discussion on the various drafts first within the Drafting Committee and later the final version on the floor of the Constituent Assembly, it seems reasonable to surmise that at least some parts of the Indian Constitution reflected his vision. There is a related issue which allows us to throw some further light on the above topic. The Indian Constitution has been characterized as having a ‘holding-together’ model of federalism, as opposed to the ‘coming-together’ model associated with the US-style federalism. As an evidence for this Stepan refers to Ambedkar’s comment in his speech to the Constituent Assembly while presenting the draft Constitution in 1949 where Ambedkar explicitly notes that the Constitution was “designed to maintain the unity of India – in short, to hold it together” (Stepan 1999, 22). Stepan further argues that given India’s internal diversity – linguistic, religious and cultural – this ‘holding-together’ model allowed far more flexibility to the central government. In this regard, he characterizes it as a ‘demos-enabling’ constitution in so far as it allows the formation of new states by a simple majority of the lower house (Article 3). I want to propose another dimension of this ‘demos-enabling’ nature: in this regard it aims to guarantee a truly open, collaborative social space with shared vision and free communication, which aims to enable participation of every member of the society including those historically marginalized. This must have been one of

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the dominant reasons that prompted Ambedkar to argue for a Constitution that favors a strong central government. He argued that important articles like “the article abolishing untouchability would not be evenly enforced if the states enjoyed too much autonomy.” As Jaffrelot goes onto note, “This centralising option naturally offended Gandhi’s supporters, who had always been very concerned about decentralising power right down to the village level” (2005, 109– 110). The fact that Indian Constitution that came to be adopted turned out to be a strongly centralist one lends support to Jaffrelot’s assessment that “[c]ontrary to Shourie’s views, Dr. Ambedkar was clearly one of the principal architects of the Indian Constitution” (2005, 114). This not only testifies to a distinct influence of Ambedkar on the centralist federalism of Indian Constitution but also its implementation of Deweyan democratic goal of equal participation of every member. Ambedkar shared Dewey’s conviction that democracy requires transcending the duality between the governed and the governors and the dichotomy between the privileged and the marginalized. Thus follows Ambedkar’s dual goal of establishing kinship with other communities on the part of the untouchables and backward classes, and ending the marginalized community’s state of isolation. But an important question in this regard concerns the dynamics between these two goals. Are they two different goals or two sides of the same coin? Further, do these dual goals have the same meaning for the caste Hindus and the marginalized? I think what Ambedkar came to realize is that while these goals are related, they needed to be addressed individually. What allowed this realization is a clearly Deweyan sense of democracy where it is not just a form of government but the very foundation of associated and harmonious life. Thus, while political democracy might end marginalized community’s state of isolation through legal means, that is not enough to establish its kinship with other communities. Ambedkar, therefore, was aware that political democracy needed to be paralleled by social and economic democracy, and it is this awareness that marks Ambedkar’s most lasting formative contribution to the Indian Constitution. Ambedkar realized that political democracy was meaningless without social democracy.4 My focus on Ambedkar’s involvement with the special provisions for the untouchables and other backward and ‘depressed’ classes in the Constitution and Hindu Code Bill is due to the fact that they both represent what Ambedkar took as the root problem with the Indian society of his time. A shift in this was a necessary presupposition for the success of Indian democracy for Ambedkar due to his more robust understanding of democracy with political as well as socio-cultural dimensions. Keeping this understanding in mind allows us to frame the negotiations that took place between Ambedkar and most of his colleagues who were caste Hindus in the contexts of the Indian Constitution and the Hindu Code Bill in a clearer perspective. These negotiations not only reflect the Deweyan spirit of Ambedkar’s democratic experimentalism but also attest to the fact that “Ambedkar is not an armchair philosopher but a man of action, a political leader who fought a battle for the rights of the most marginalized

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people in India, a battle that is comparable, in many ways, to those fought by leaders like Martin Luther King and Nelson Mandela” (Mukherjee 2009, 348). Against the Hindu elite who argued that untouchables didn’t need ‘separate electorates’ as they were part of the community of caste Hindus since ‘they lived so close’ to the latter, Ambedkar pointed out that what makes a society is not the proximity of living quarters but the existence of true and open communication. Thus untouchables needed their own electorates – ‘their right to choose their own representatives’ because there was no ‘like-mindedness’, no mutuality of respect and reverence between the caste Hindus and untouchables. When Ambedkar’s attempts to secure separate electorates for the untouchables failed, he wrote ... for the minorities in India, Indian Nationalism has developed a new doctrine which may be called the Divine Right of the Majority to rule the minorities according to the wishes of the majority. Any claim for the sharing of power by the minority is called communalism while the monopolizing of the whole power by the majority is called Nationalism. Guided by such a political philosophy the majority is not prepared to allow the minorities to share the political power. Under these circumstances there is no way left but to have the rights of the Scheduled Castes embodied in the Constitution. (quoted in Mane 2005, 257–8) It was Ambedkar’s firm belief that untouchability was the steepest ban on endosmosis both politically and socially. So he not only argued forcefully for the inclusion of Article 17 that abolished untouchability and made it illegal, he also promoted social endosmosis through the use of other provisions in the Indian Constitution. Thus follow Ambedkar’s efforts in relation to reservation policy for the untouchables (referred to as the Scheduled Castes and Scheduled Tribes (SC & ST) in the Indian Constitution) as exemplified by Article 330 that reserves seats in the Indian Parliament for SCs & STs; Article 332 that reserves seats in the State Legislative Assemblies for SCs & STs; Article 336 that provides Reservation in the civil services for the SCs & STs; and Article 337 that makes provision of the educational benefit in terms of reservations in university faculty appointments and student admissions for SCs & STs. 5 When Ambedkar’s proposal involving the above mentioned measures for protecting the interests of untouchables came for discussion in the Constituent Assembly, many leading members, most of them caste Hindus, opposed it on the basis that the “provision for eradicating the untouchability has already been included in the Constitution [in article 17]” (Singh 2005, 83–84). In response, Ambedkar argued “that the social, political and economic upliftment of the untouchables is not possible simply by making provisions and passing motions.” He expressed the view, “The untouchables can’t develop if they don’t get reservation in the services and the legislatures in proportion to their population” (Singh 2005, 83). As a result of this clear vision and sustained leadership of

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Ambedkar in the Constituent Assembly, all the above mentioned articles relating to the welfare of the untouchables were accommodated within the Indian Constitution. What have been the effects of these provisions on the socio-political status of the marginalized population of India since they went into effect in 1950? While historically marginalized Indians still face daily hardships, 6 it is undeniable that “[r]eservations in education, in legislatures and in government employment have brought about into universities and the political process many individuals who otherwise would have entered neither and they attest to the paradoxical erosion of the caste system as caste allegiance facilitates upward mobility” (Mane 2005, 266). In this regard, it is also pertinent to note William Darity Jr’.s comparative estimation when he writes, ... to put it bluntly, India has had a far more aggressive and welldeveloped system of affirmative action than the USA. While the Indian system has not been extended to private sector employment as it has in the USA, it has included the parliamentary system from the outset – an arena that has never been the purview of affirmative action in the US. The Indian system is a quota system rather than a more timid system of preferential boosts of the sort used in America. And the India system is inscribed in the national constitution, precluding the more whimsical status it possesses in the USA. (Darity 2008, xiii). He further comments, “it is Ambedkar’s intellectual and political contributions that lie at the heart of the development of the reservation policy that prevails in India to this day” (Darity 2008, xii) We have noted above that Dewey considered democracy to be radical since it ‘requires great change in existing social institutions’ and, in a similar spirit, Ambedkar came to the conviction that a truly communal life where every Indian participates was not possible without a thorough overhaul of the age old Hindu social order and Caste System and this focused his involvement with the Hindu Code Bill. “While the Constitution outlined a favorable framework for social reform, particularly by abolishing untouchability and by prohibiting all discrimination based on caste, race and sex,” “Ambedkar was determined to attack the ills of Indian society in a more concrete fashion.” (Jaffrelot 2005, 5) Ambedkar saw the project of Indian democracy and Annihilation of the existing Hindu Caste Systems as integrally intertwined. In his address on Prospect of democracy in India, a talk for Voice of America, on 20 May 1956, Ambedkar comments that the Caste System ‘militates against democracy’. What he takes the castes to be characterized by is a ‘Graded Inequality’ where the system becomes “an ascending scale of hatred and a descending scale of contempt” (quoted in Mane 2005, 262). The Hindu Code Bill was an ‘omnibus measure’ that aimed for a thorough revision and modernization of various Hindu personal law codes. Various aspects of this Bill included marriage and divorce, property ownership and inheritance, women’s rights, adoption, and most controversially

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the role of caste in a Hindu identity. This Bill was not only a ‘cornerstone of the modernization of India’, but it also served as the basis of the secularization of its political space. This Bill became one of Ambedkar’s defining projects as the Law Minister in the Nehru cabinet. The Hindu Code Bill also provided a concrete location for Ambedkar’s idea of Indian democratic experimentalism. But it brought him into direct confrontation with most of his colleagues as they did not share his conviction. One of this Bill’s forceful opponents was Rajendra Prasad, the President of the Constituent Assembly. One of his arguments was that this Bill is discriminatory since it is only aiming to ‘secularize’ Hindu personal law while leaving the personal laws of minority communities untouched. More importantly, as Austin puts it, his fear was that “this Bill would force ‘revolutionary changes’ in Hindu life,” and he also found the measure unnecessary as for him “Hindu law was evolving in ways making legislative changes unnecessary” (Austin 1999, 22). Unfortunately, the opponents’ voices proved too strong and under tremendous pressures from his Congress Party colleagues, Nehru decided to postpone bringing the Bill to the parliament after the general elections of 1952. This became one of Ambedkar’s main reasons for resigning from the Nehru cabinet in 1951, and, in declaring his resignation, he wrote, “To leave inequality between class and class, between sex and sex which is the soul of Hindu Society untouched and to go on passing legislation relating to economic problems is to make a farce of our Constitution and to build a palace on a dung heap. This is the significance I attached to the Hindu Code” (Ambedkar 1951, 1326). However, In spite of Ambedkar’s disappointment, this Bill was split in four parts and brought to the parliament where significant aspects of the Hindu Code Bill passed in subsequent years. So even in this regard Ambedkar’s democratic experimentalism seemed to get the Indian democracy started on the right track. 6. Conclusion “Ambedkar, with his iconoclastic critique of the Indian ruling class and its heroes, remains a sticking nail, an uncomfortable guest at the nationalist celebrations of India’s might” (Mukherjee 2009, 346). In fact it is this unease that prompted fundamentalist caste Hindu authors like Aurn Shourie to portray Ambedkar as a traitor to Indian nationalism and a supporter of the British colonialism. What I have tried to show is that Ambedkar in his clear conviction and commitment to the case of Indian democracy was not only not a traitor but also a sophisticated thinker who in the true Deweyan spirit questioned the false dichotomy between a nationalist uncritical of ‘dead wood’ traditionalism and a blind supporter of the colonialism. In conclusion, I agree with Mukherjee when he writes, “Ambedkar’s politics and writings demonstrate that philosophy can grow more than cabbages. Today, Dewey’s words, interwoven with Ambedkar’s, speak from multifarious locations: in committees’ and parliamentary records, in writings on Ambedkar, and now, on various Web sites on Ambedkar

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in cyberspace. It is important to recognize this piece of the pattern of Ambedkar’s life and work” (Mukherjee 2009, 368).

NOTES 1. Austin quotes Shankarrao Deo, the ruling Congress Party General Secretary, who wrote that democracy might remain as a ‘theoretical concept’ for the ‘politically immature people’ of India (1999, 17). 2. My thinking as reflected in this section is deeply influenced by Bernstein’s “John Dewey’s Vision of Radical Democracy” (2010) that captures quite clearly the main thrust of Dewey’s thinking on democracy. 3. As Dewey pointed out in his classes, “individuality operating in and for the end of the common interest” (quoted in Mukherjee 2009, 352). 4. In his speech to the Constituent Assembly during the final debate before the adoption of the Constitution, Ambedkar commented, “On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we deny it for long, we will do so only by putting our democracy in peril.” (Constituent Assembly Debates, vol. 12, p. 979) 5. Please refer to Mane 2005, pp. 250–252, and Thorat and Kumar 2008, pp. 333– 344 for a more detailed discussion of these and other related articles and arguments that Ambedkar presented at the Constituent Assembly in support of these. 6. As K. R. Narayanan, the President of India, in his Address to Nation on the eve of the Golden Jubilee of Republic of India, singled out ‘the status of women’ as ‘our greatest national drawback’ and the condition of the Dalits, the erstwhile untouchables’ as ‘our greatest national shame’ (quoted in Mane 2005, 265).

REFERENCES Ambedkar, B. R. 1936. Annihilation of Caste with a Reply to Mahatma Gandhi in Dr. Babasaheb Ambedkar’s Writings and Speeches vol. 1, ed. V. Moon (Bombay, India: Education Department, Government of Maharashtra, 1979). Ambedkar, B. R. 1945. What Congress and Gandhi have Done to the Untouchables in Dr. Babasaheb Ambedkar’s Writings and Speeches vol. 9, ed. V. Moon (Bombay, India: Education Department, Government of Maharashtra, 1991). Ambedkar, B. R. 1951. “Resignation Statement,” in Dr. Babasaheb Ambedkar Writings and Speeches vol. 14:2, ed. V. Moon (Bombay, India: Education Department, Government of Maharashtra, 1995). Ambedkar, B. R. 1989. “Speeches in Constituent Assembly Debates Official Report,” (reprinted by Lok Sabha Secretariat New Delhi, 2nd reprint).

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Keya Maitra Department of Philosophy University of North Carolina at Asheville One University Heights Asheville, North Carolina 28804-8520 United States

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