Representative Democracy: Principles and Genealogy 9780226842806

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Representative Democracy

Representative Democracy Principles and Genealogy

NADIA

URBINATI

The University of Chicago Press

Chicago and London

The University of Chicago Press, Chicago 60637 The University of Chicago Press, Ltd., London
C 2006 by The University of Chicago All rights reserved. Published 2006 Paperback edition 2008 Printed in the United States of America 17 16 15 14 13 12 11 10 09 08

2 3 4 5 6

ISBN-13: 978-0-226-84278-3 (cloth) ISBN-13: 978-0-226-84279-0 (paper) ISBN-10: 0-226-84278-9 (cloth) ISBN-10: 0-226-84279-7 (paper) Library of Congress Cataloging-in-Publication Data Urbinati, Nadia, 1955– Representative democracy : principles and genealogy / Nadia Urbinati. p.

cm.

Includes bibliographical references and index. ISBN 0-226-84278-9 (cloth : alk. paper) 1. Representative government and representation.

2. Democracy.

I. Title. JF1057.U73

2006

321.8—dc22

2006002486

∞ The paper used in this publication meets the minimum


requirements of the American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1992.

To my mother

Athens, by representation, would have surpassed her own democracy. PAINE, THE RIGHTS OF MAN

If the people and the parliament no longer understand each other, the representative form of government on the whole is called into question. HERZL, LE PALAIS-BOURBON

Citizens have not yet fully grasped the idea that any power is bad if not watched over, while any power is good so long as it feels a peaceful, clairvoyant, and obstinate resistance.

ALAIN, LE CITOYEN CONTRE LES POUVOIRS

Contents Acknowledgments Introduction

1

Representation and Democracy

xi 1

17

Representation in Democratic Theory and History 18 Three Theories of Representation 20 Continuity, Rupture, and People’s Negative Power 25 Discord and the Ballot, or Presence through Speech and Ideas 30 Partisanship as an Active Manifestation of the General 35 Proportional Fairness and the Dual Nature of Equality 40 Advocacy 44 Representativity 49 Rethinking Popular Sovereignty 52

2

Rousseau’s Unrepresentable Sovereign Either Delegates or Representatives 62 Sovereign Unity: Symbiotic or Symbolic? 66 Two Models of Unification 69 The Sovereignty of the Will 72 A Privatistic Model of Delegation 75 The Travel Agent and a Minimalist Participation 76 Imagination, Speech, and Deception 79 The Deliberative Judgment of the Few 83 Asking the Right Question 85 Paradoxes of Minimalism 88 Reflection and the Rule of Immediacy 90

60

The Time and Space of Politics and the Paradox of a Punctuated Freedom 94

3

Will and Judgment: The Kantian Revision

101

Freedom from the Externality of the Presence 102 The Subterranean Work of Informal Sovereignty 106 Individual Atoms in a Participatory Void 111 The Soft Power of Judgment 115 Ideology and the Representing Faculty of Imagination 119 The Fiction of As If 124 Genera of Judgment 126 Political Dependence 130 Common Opinion and the Revolution 135

4

A Nation of Electors: Sieye’s Model of Representative Government

138

All Human Relations Are Representative 140 Interest and Competence as Unifying Factors 141 Exchange versus Barter: Democracy Is Primitivism 144 The Currency of Electoral Consent 146 The Metamorphosis of the Citizen into the Elector 147 Passive and Active Freedom 149 The Symbolic Sovereignty of the Nation 152 The Impolitical Category of Competence 155

5

Thomas Paine and the Perfecting of Simple Democracy

162

The Sovereign Nation and Federalism’s Threat 162 Democratic Republicanism 167 Democracy Surpassing Itself 172

6

A Republic of Citizens: Condorcet’s Indirect Democracy The Longue Dure of the Democratic Project in the Age of Representation 177 Perpetual Innovation versus Immediate Politics 181 The Secularization of Origins: Democracy as a Time-Regime 184 Indirect Despotism 187 The Syllogism of Democratic Constitutionalism 190 Democratic Moderation and the Principle of Collegiality 194

176

Democratizing Deliberation 197 Multiplying the Times and Places of Deliberation 201 A Cooperative Enterprise 205 Primary Assemblies and the Special Terrain of Politics 207 Sovereignty of Surveillance 213 Breaking and Restoring Trust 216

Conclusion: A Surplus of Politics

223

Notes

229

Bibliography

293

Index

317

Acknowledgments This book deals with political representation as a way for democracy to constantly recreate itself and improve. I have benefited from the opportunity to present parts of this work at conferences and seminars, and in particular the international conference “Rethinking State and Popular Sovereignty,” organized by Jean L. Cohen at Columbia University in October 2003; the Political Thought Conference held at St. Catherine’s College, Oxford, in January 2004; the 2002, 2004, and 2005 annual meetings of the American Political Science Association; the 2005 meeting of the Midwestern Political Science Association; and moreover the Columbia University Seminar in Political and Social Thought, the Columbia Colloquium in Political Theory, the Political Philosophy Colloquium at Princeton University, the Political Theory Seminar at New York University, the Colloquio di Filosofia e Scienze Sociali at the University of Milano-Bicocca, the Seminario Permanente di Teoria Politica at the University of Pavia, and Harvard’s Political Theory Colloquium. I would like to thank the chairs and participants of these discussions, and especially Marina Calloni, Ian Carter, Dario Castiglione, Simone Chambers, Jean L. Cohen, Joshua Cohen, Julian Franklin, Jeremy Jennings, David Johnston, Ira Katznelson, Stephen Macedo, Bernard Manin, Joseph McCormick, Russell Muirhead, Pasquale Pasquino, Philip Pettit, Andrew Rehfeld, Melvin Richter, Tracy Strong, Dana Villa, Jeremy Waldron, and Robert Wokler. Friends, colleagues, and students have read portions of the manuscript or discussed with me issues and ideas

expressed here, offering illuminating suggestions. I owe my debt to Andrew Arato, Seyla Benhabib, Jean L. Cohen, Jon Elster, John Ferejohn, Roberto Gargarella, Alex Gourevitch, Stephen Holmes, Andreas Kalyvas, George Kateb, Steven Lukes, Bernard Manin, Bajeera McCorkle, Fernanda Mazzanti Pepe, Reidar Maliks, Russell Muirhead, Pierre Rosanvallon, Giovanni Sartori, Quentin Skinner, Michel Troper, Salvatore Veca, Jeremy Waldron, Mark Warren, Linda Zerilli, and Ian Zuckerman. Katherine Pettus helped me enormously in improving the style of my writing.

Introduction Although we call contemporary Western governments democratic, their institutions were designed to contain rather than to encourage democracy. Alexis de Tocqueville rendered this paradox with a surgeon’s precision when he described America as socially democratic and politically aristocratic (read “republican”). When Tocqueville arrived in the United States, about half a century after its founding, democracy’s long, bad reputation among political leaders and thinkers on both sides of the Atlantic was still almost intact, its short but memorable appearance in Athens having made it more enemies and critics than friends. Athens might have been a democracy, but the best Athenian political theorists were sanguine about what they dismissed as “the rule of the poor.”1 Twenty-five centuries had to elapse before John Dewey appeared as the first consistently democratic philosopher and theorist. Yet even in the democratic century par excellence and despite the contemporary rhetoric on the globalization of democracy, many modern institutions (representation in particular) are judged from the perspective of their eighteenth-century architects. The axioms held by the authors of The Federalist Papers and Emmanuel-Joseph Sieyes remain canonical, and universal suffrage has not altered the undemocratic nature of a system whose basic “arrangements have remained the same” since it emerged as a government of notables elected by a few privileged voters.2 The government of the moderns is apparently unchanged, its identity having been frozen in the nondemocratic choices made by its founders. 1

INTRODUCTION

Athens, which was a genuine democracy, is the touchstone for our thinking about democracy (and the undemocratic character of representative government). Born as a compromise between the newly empowered “common people” and the already powerful wealthy (“a strong shield around both parties”), it took several revolutions to become the rule of the many (poor or “ordinary”). Democracy meant that poverty was neither something the people had to be ashamed of, nor a reason for political and civil disempowerment.3 Athens was a genuine democracy because it tried to break the continuity between the power of wealth and political power. It did so without imposing economic equality and making the equals equal, or without violating the voluntary nature of participation. Democracy meant that each and every citizen had an equal and meaningful chance to take part in lawmaking and to address the assembly. The citizen had the right to participate (isonomia) as well as to speak on matters of state importance (is¯egoria). “In oligarchies, only he who rules (ho dunasteu¯on) addresses the people, whereas in democracies whoever so wished (ho boulomenos) could speak whenever it seemed right to him.”4 Athenian democracy proved that political equality translates into liberty, yet not at the expense of individual distinction and competition between citizens’ political skills and ideas. Modern democracy falls short of Athenian standards.5 The variety of stratagems that disempower the poor and empower wealth in politics points to the fact that Western constitutional democracies lack the legal resources to block the ever-mutating forms of soft political influence created by economic and social relations. Although formally more inclusive than in Athens, popular participation in contemporary democracies is episodic. Whereas Athens tried to discourage citizens’ absenteeism, many of today’s democracies make participation both costly and difficult.6 One may legitimately say that the modern system is either something else (another type of regime) or another type of democracy. This thought has led some theorists to claim it is no democracy at all, and shouldn’t be called such.7 If it is indeed a democracy, it is fragmented and only approximately or intermittently democratic, when citizens vote, petition, demonstrate to voice their otherwise ignored or unheard opinions, and join social and political movements. Political theorists account for this anomaly by positing contemporary democratic government as a mixed constitution (a kind of “machinery that combines democratic and undemocratic parts”)8 rather than a democracy per se. This is because modern democracy qualifies as legitimate if the elected representative setting publicizes its proceedings (is transparent) and subjects those proceedings to collective discussion; 2

INTRODUCTION

legitimacy does not require citizens’ participation in legislative deliberation. Properly speaking, modern democracy is a “government by discussion” in which public speaking and voting for representatives (rarely on issues) are the only direct formal rights adult citizens are always entitled to. It is paradoxical to call it democratic, for the only moment the citizens decide directly is when they delegate legislative power. Elections mean that popular sovereignty appears only “at fixed and rare intervals” much like a comet; citizens exercise it “always only to renounce it.”9 A Janus-faced institution, elections give representation a democratic face and democracy an aristocratic twist. Their function is “not to make a democracy more democratic, but to make democracy possible. Once we admit the need for elections, we minimize democracy for we realize that the system cannot be operated by the demos itself.”10 I am not proposing to lower the normative value of direct participation in the name of the pragmatic feasibility of electoral democracy nor arguing for a resigned acceptance of the given. My intention is to understand those forms of indirect political presence that make contemporary government democratic. Thomas Paine’s subversive idea—“Athens, by representation, would have surpassed her own democracy”—shall be my guide.11 So, rather than focusing on Athenian institutions, I propose comparing Athens’ two principles of political equality (isonomia and is¯egoria) with the institutions of contemporary democracy and with representation in particular, which is the most unique institution of all. As a matter of fact, Tocqueville identified the American polity as a democracy because of political equality, regardless of the fact that it was representative or direct.12 This identification is legitimate because it acknowledges the deliberative (as discursive and interpretative, not only decisional) character of democratic politics, which is common to both ancient and modern democracy. From this perspective, the distinction between direct and indirect politics opens up promising paths of interpretation rather than creating obstacles, since it frames the institutional and sociocultural spaces within which the various components of political action take shape—from opinion and will formation to voluntary participation in movements, contestation, voting, and decision-making. Focus on presence through ideas and speech reveals participation and representation not as alternative forms of democracy but as related forms constituting the continuum of political judgment and action in modern democracies. Yet only a tiny minority of theorists assumes that representation is not alternative to but in fact supports democratic participation.13 Most scholars argue instead that representation has been the most ingenious invention constitutional designers have created to neutralize 3

INTRODUCTION

political participation by making the people a legitimizing force at the instant they renounce their ruling power.14 Skeptics of both “pure” and “representative” democracy agree that representative democracy is an oxymoron. This book explores (and defends) the arguments of the minority that believes democracy and representation are complementary rather than antithetical. Their arguments subvert both kinds of skepticism because they deny that representation is an expedient or second best, and assert that representation is primed to expand democratic participation and in fact is essential to democracy—in other words, that democratic representation is not an oxymoron. Sheldon Wolin suggests that the democratic interpretation of representation is truly subversive when he identifies the work of Paine, rather than that of the Federalists, as democracy’s “theoretical moment of surrender.” Indeed, it was “when democracy’s sympathizers” like Paine accepted representation in the name of democracy, not as a second best or expedient, that modern democracy was able to assert itself on autonomous grounds in relation to both ancient (direct) democracy and modern representative (undemocratic) government.15 My goal is to inquire into the conditions under which representation is democratic—that is, a mode of political participation that can activate a variety of forms of citizen control and oversight. I argue that representative democracy is an original form of government that is not identifiable with electoral democracy. By the end of this introduction I hope to have clarified the reasons why I think this is a crucial and timely objective for politics and political theory as well. Contemporary democratic theory encourages my proposed revision. Indeed, representation now engages democracy scholars more directly, a change from the traditional defense of representative institutions by the Schumpeterian and neo-Schumpeterian theorists of the circulation of elites and electoral democracy against the proponents of “participatory” or “strong” democracy.16 The institution of representation is regarded as the source of the “moral distinctiveness” of modern democracy, and even the sign of its superiority over direct democracy.17 Even more radical is the argument that in a representative democracy “the opposite of representation is not participation,” but exclusion from representation. Rather than being inimical to participation, “political representation is both necessary and desirable,” while the “elevation of direct democracy to the apex,” as the only “real” democracy, “is mistaken.”18 As a matter of fact, the direct presence of all citizens did not prevent the Athenian

4

INTRODUCTION

ekkl¯esia from being an assembly in which the large majority abstained from fully active participation. Periclean and post-Periclean reforms discouraged absence, not silence. Adult male citizens were paid to attend, not to speak: “There was no law requiring anybody to appear in the role of ho boulomenos [anyone who wanted to speak], and the orators found no fault with the fact that many Athenians never addressed their fellow citizens.”19 The democratic rediscovery of representation is both interesting and compelling. However, a systematic and comprehensive defense of the normative core that makes it democratic is still lacking. I intend to fill this lacuna by claiming, first, that public discourse is one of the main features that characterize and give value to democratic politics, ancient and modern, direct and representative. Presence through voice, by which I mean the public exposure of citizens’ political judgment, defines the indirect character of democratic politics both when citizens vote on laws and when they vote for representatives. Regardless of the form of the decision-making process, voice involves two kinds of active doing— positive as activating and propositive, and negative as receptive and surveilling. This idea is essential in order to understand the role of judgment and the nature of participation in representative democracy. Judgment is not alternative to action, nor is it mere post-action evaluation by those who did not act, as if only some act while the others observe passively and at most consent or rebuff.20 Second, I argue that indirectness (and representation, which is the most important form of indirectness) plays a key role in forging the discursive democratic character of politics, and aids rather than obstructs participation. Third, I sustain that representation highlights the idealizing and judgmental nature of politics, an art by which individuals transcend the immediacy of their biographical experience and social and cultural belongings and interests, and educate and enlarge their political judgment on their own and others’ opinions.21 In sum, political representation is far more than a system of division of labor and a state institution; it entails a complex political process that activates the “sovereign people” well beyond the formal act of electoral authorization. Representative politics has the power of unifying and connecting (through friction or concurrence) the “fluctuating” “atomic units” of civil society by projecting citizens into a future-oriented perspective.22 It has the power of keeping the sovereign in perpetual motion, so to speak, while transforming its presence from formally sanctioning mechanism to exquisite political influence. Finally, it confers on politics an unavoidable ideological dimension insofar as it

5

INTRODUCTION

instates ideas in the house of politics such that they can represent and shape citizens’ sociopolitical identity and claims. Representation is a comprehensive filtering, refining, and mediating process of political will formation and expression. It models the object, style, and procedures of political competition and action. It helps to depersonalize claims and opinions, which in turn allows citizens to mingle and associate without erasing the partisan spirit essential to free political competition or obscuring the majority/minority divide. Modern democratic society resembles a vast and webbed agora in which, to paraphrase Immanuel Kant, no deed or issue remains unheard, cast away from the peoples’ eye of the mind and judgment. Representation is intrinsic to this world of attention and indirectness. It can never be truly descriptive and mimetic of social segmentations and identities because of its unavoidable inclination to transcend the “here” and “now” and to project instead a “would-be” or “ought-to-be” perspective that translates almost naturally into advocacy. Political equality—as a condition of legitimacy, a guide to judgment, and a promise to be fulfilled—is the reference point in relation to which the political process of democratic representation defines its goals and language, and projects and submits itself to the critical judgment of the citizens. In this book I discuss representation in relation to the modern concept of popular sovereignty. Indeed, while Athens is the classical point of comparison in our thinking about democracy, the idea that representation is antithetical to democracy did not originate from a comparison with Athens. Although they stressed the modernity of their representative republic, the authors of The Federalist Papers did not assert a principled incompatibility between ancient democracy and representation; indeed, they even recognized that Athens employed representation in some state branches. By the same token, Paine the democrat rested his case for democracy on the continuity between ancient and modern democracy, rather than their incompatibility.23 So where did the incompatibility theory come from? The incompatibility theory (between democracy and representation) is the foster child of the modern conception of sovereignty. Its conceptual coordinates lay at the core of constitutionalism and the theory of government outlined by Montesquieu and Rousseau, the first theorists to explicitly argue (for divergent reasons) for an insoluble tension between democracy, sovereignty, and representation.24 The former merged self-government (sovereignty) and direct government (democracy) in a formulation that has became paradigmatic: a government is

6

INTRODUCTION

democratic if “the people as a body have sovereign power” and if “the people alone . . . make laws.” The latter, who separated the political foundation of the state from the various forms of government, thereby distinguishing sovereignty from democracy, used Montesquieu’s formulation to define the body politic or the republic.25 The two theorists approached problems of sovereign identity and the sovereign exercise of power differently and yet reached surprisingly similar conclusions. Montesquieu, the mentor of liberal representative government, separated representation from democracy; Rousseau, the mentor of direct legislation as the principle of political legitimacy, separated representation from sovereignty. Montesquieu argued that a state where the people delegated their “right of sovereignty” could not be democratic and must be classified as a species of mixed government, actually an elected aristocracy. Rousseau saw such a state as nonpolitical from the start and illegitimate because the people lost their political liberty along with the power to vote directly on legislation: unless all citizens were lawmakers, there was no such thing as a citizenry. In both cases, democracy and sovereignty excluded representation. These are the theoretical assumptions underlying the arguments of contemporary scholars who describe representative government as undemocratic and representation as an expedient or second best. The incompatibility between representation and democracy has traditionally been defined from the perspective that democracy is immediate, a perspective that a priori excludes indirect forms of political action because it is entrenched in a voluntaristic and decisionist conception of sovereignty. Hence the conclusion that although representation may facilitate political decision-making in large states, it is not democratic because it displaces the sovereign will, which cannot be represented, and because it makes the people politically active only the day they make themselves slaves, as Rousseau tells us in The Social Contract. Athens is not the source of the incompatibility doctrine. Proponents and critics of the incompatibility between representation and democracy presume direct sovereignty and sovereignty as will when they portray representative government as a breach of political autonomy.26 From this perspective, the claim that representation does not necessarily break with people’s presence seems at the very least counterintuitive and the conclusion that representation violates democracy both predictable and predetermined. Also predictable is the conclusion that the democratic evolution of the nineteenth and the twentieth centuries notwithstanding, a “represented democracy,” although technically feasible, is an

7

INTRODUCTION

oxymoron, while direct democracy, although the norm, is impractical. I am challenging this idea of democracy shared by skeptics of both “pure” and “representative” democracy. The government of the moderns is not defined by election per se, but by the relationship between participation and representation (society and the state) instituted by elections. This relation is permeable to the transformations of society and, therefore, sovereignty. Besides, as Rousseau understood, direct sovereignty does not entail renouncing elections nor, conversely, restoring lottery, the system of selection that since the constitutional dialogue in Herodotus’ Histories has been identified with democracy. The crucial factor of representation is the relationship between the inside of state institutions and the outside created by elections. Contemporary studies of representation are characterized by three distinct approaches. On the one hand, scholars investigate the issue of representation as part of the broader analysis of identity politics, group rights, and multiculturalism. Representation is in this case a subset of theories of justice, and is discussed with a view to solving deficits of representativity in our advanced pluralist democracies, the visible fact that some portions of the citizenry are underrepresented or proportionally less represented than others. Hence the challenging debate over equal representative opportunity, fair representation, and the search for electoral systems that can make representation more expressive of the identities and claims of the represented.27 The second direction analyzes the origins, function, and the semantic and political transformations of representation in terms of the effect of its relationship to the modern constitutional state and to the democratic constitution in particular.28 While the former direction is essentially evaluative, this one is fundamentally analytical and cognitive. Its goal is to attain a systematic definition that allows us to understand what representation actually does and is in relation to democracy and the norm of political autonomy or liberty. Its basic and obvious starting point is the ambiguity of representative democracy, which is vague in the sort of way H. L. Hart defined an ambiguous definition: “a definition which tells us that something is a member of a family cannot help us if we have only a vague or confused idea as to the character of the family.”29 The third direction approaches representation from within, in order to understand how it shapes consent formation, political deliberation, and decision-making—in a word, how it relates to the overall practices of participation. The extremely rich debate over deliberative democracy 8

INTRODUCTION

has encouraged this line of research and inspired my research.30 I believe that the inquiry over the relation between representation and democracy, that is to say democratic society in its multifarious forms of presence and associational influence, is the key to the issue of justice in representation insofar as it is an issue of democratic (as political) justice or political equality. Bernard Manin’s The Principles of Representative Government and Hanna Fenichel Pitkin’s The Concept of Representation are the main points of reference in relation to which I structure my argument. Manin’s analysis attempts to combine the two contemporary approaches to democracy— the Schumpeterian or elitist one and the deliberative one—in order to argue that representative government is a unique form of government. Its uniqueness, however, derives from election, not representation. Representation plays no substantial role in Manin’s work, whose main goal is to prove this system is not identifiable with democracy. Whereas democracy practices rotation, representative government practices election, a mechanism of selection that is inherently aristocratic because it discriminates and excludes. However, it can be realized through democratic means, such as universal suffrage and the public discussion of ideas, two necessary conditions for the candidates to compete on promises, and for the elected to be held accountable for what they have made of their promises. To make his point, Manin interprets the work of the French and American founders of constitutional representative government as driven by the deliberate choice of using elections as an alternative to democracy. Manin concludes by collapsing representation into electoral authorization, which he sees as the outcome of an individual-to-individual relationship by which means the elector evaluates the personal skill and qualities of the candidate(s) in relation to her/his own skills and qualities and those of all other candidates. The political process consists in a psychosocial game of comparison between individuals—the candidate(s) by the elector(s)—with no intermediary institutions needed. (Manin sees the party as accessory and temporary—in any event, as not essential to representative government.) In the spirit of Montesquieu, he posits the aristocratic nature of elections as a way to choose someone because of his actual or imputed characteristics; election’s democratic character is based on the traditional assumption that the many are better than the few in recognizing competent individuals but worse than them in acting competently.31 The individual-to-individual rendering of representation is the main obstacle to the reconciliation of representation and democracy. This is 9

INTRODUCTION

the perspective that leads Manin to the conclusion that electoral suffrage has produced no change in the practice and institution of representation, which are substantially the same today as they were when only few citizens had the right to vote. According to this description, democratic representation is invariably an elected form of oligarchy or aristocracy. In her seminal The Concept of Representation, Pitkin opens the door to the path I am taking here. She begins her study on representation with the acknowledgment that “through much of their history both the concept and the practice of representation have had little to do with democracy or liberty.”32 Her goal is to question this view and to illuminate the unique features of political representation in constitutional democracy. However, in the course of her research, Pitkin focuses essentially on the semantic and conceptual analysis of the category of representation. As for political representation—the subject of the last chapter of her book—she approaches it as a form of political agency but does not inquire into its relation to sovereignty and democracy or the kind of political participation that representation brings about in a democratic society. Pitkin brings together conceptual and semantic analysis and gives this combination a normative twist, but makes the examination of deliberative institutions and their relation to society peripheral.33 In this respect, Manin’s book is a welcome complement because it redirects our attention to the deliberative work of modern government. I would like to reunite the normative aspect (what political representation putatively is supposed to be) with the institutions of democratic government (what representation produces or does). I argue, first, that representative democracy is neither an oxymoron nor merely a pragmatic alternative for something we, modern citizens, can no longer have, namely direct democracy; and, second, that it is intrinsically, and necessarily, intertwined with participation and the informal expression of “popular will.” Whereas theorists of electoral democracy collapse democracy into the right to vote for representatives, I propose we stretch the meaning of representation and see it as a political process and an essential component of democracy. It is essential to reflect on the democratic aspects of political action and practice that representation puts in motion both to complete our conceptual understanding of representation and to apprehend the normative condition and the principles of representative democracy. Finally, as Pitkin argued, it is paramount that we understand government is representative “not by demonstrating its control over its subjects but just the reverse, by demonstrating that its subjects have control over what it does.”34 10

INTRODUCTION

I take Pitkin’s words as a propaedeutic to chapter 1, whose main goal is to set out the normative guidelines of a democratic theory of representative government, which the ensuing chapters are meant to elucidate. The main argument of the first chapter is that democratic representation presumes a revision of the notions of both representation and sovereignty. As for the former, I make three main claims: that representation belongs to the history and practice of democratization; that different theories of representation are possible depending on the relationship between state and society; and that the political theory of representation is consistent with a democratic relation between state and society. As for the latter, I argue that representation challenges the idea of sovereignty as unrepresentable will by bringing judgment into the politics of the sovereign; this revision is visible through representativity and advocacy, the two basic characters of democratic representation. These are the normative guidelines of representative democracy as an articulated strategy of law formation and surveillance and revocation, and of democratic representation as a middle path between an unconditional delegation and the refusal of any delegation, or between electoral authorization of an aristocracy and direct democracy. Chapter 2 discusses the objections to representation, which the theory of representative government has traditionally relied upon. My main theme here is a critical analysis of Rousseau’s conceptions of sovereignty and representation. Rousseau denied representation a political role and confined it rigorously to a private relation of delegation. The point is that a decisionist sovereign is not necessarily democratic; and the people’s unmediated presence in the assembly does not necessarily prefigure a truly participatory polis. In chapter 3, I engage Rousseau’s arguments against representation through Immanuel Kant’s revision of the sovereignty of the will. Kant was the first theorist to make indirect politics the norm rather than merely an expedient, and to capture the extraordinary potential that flows from judgment, an essential component of political liberty. In the remainder of the book I explain how the sovereignty of the will and its revision by means of judgment can enhance certain results once we enter the realm of representative government. In chapter 4, I critically examine the main tenets of electoral democracy as formulated by Sieyes, the theorist and political leader who brought Rousseau’s perspective into the representative context. From a theoretical viewpoint, the metamorphosis of the citizen into the elector corresponds to the application of the power of the sovereign-people to the sovereign-nation represented in the legislative assembly. 11

INTRODUCTION

The outline of the constitution written by le Marquis de Condorcet in 1792–93 allows me to discuss an important alternative to both models of absolute sovereignty—direct and electoral—and the minimalist view of political participation they entailed. Thus in chapter 5 I clarify the differences between representative government and representative democracy as Thomas Paine first envisioned them in the course of his 1791 debate with Sieyes, and in chapter 6 I analyze the first comprehensive proposal of democratic representation as a norm of good government. The goal of Condorcet’s constitutional plan was to regulate the creation of authority “from the bottom up” by means of a flexible and permanent relationship between participation and representation. Its aim was to prevent the “despotism” of the representative assembly, on the one hand, and the random fluctuation of the people between a state of depoliticized apathy and a state of extralegal mobilization, on the other. Rousseau, Kant, Sieyes, Paine, and Condorcet were almost contemporaries and in a quasi-direct dialogue. Moreover, Rousseau’s unrepresentable sovereign was the reference point in relation to which Sieyes and Condorcet developed their constitutional and representative designs in the years between 1789 and the beginning of the Terror. The differences between the political orders they devised prove that there have been important attempts to create, not only to theorize, a system of government within which the electoral and aggregative moment was not a substitute for democracy and a synonym for representative democracy. Furthermore, they exemplify the inner ramifications of the representative model in an undemocratic branch and a democratic one. To strengthen my case for a democratic representation I pursue a genealogic strategy. Indeed, if Manin is correct that “representative government remains what it has been since its foundation” in the eighteenth century, then a challenge to its main tenets suggests that we return to its very foundation and test the idea that representative government had a simple and linear story. Despite its success, the electoralist rendering of representative democracy does not exhaust the meaning of representation and democracy, and the possibility of a different approach and different institutional solutions. Representative government is a far from homogenous category and can be best described as a complex and pluralistic family whose democratic wing is not the exclusive property of those who argued for participation against representation. Condorcet’s vision and project were intended as guidelines for a democratic implementation of representative and deliberative procedures. They support my argument that despite the substantial uniformity of the paradigm of representative government in the last two centuries, the dualistic space 12

INTRODUCTION

(citizens/representative institutions) created by elections has not always been seen as an ideal solution—certainly not when the demos became democratic in its composition. Questions about the identity of representative government are normative or evaluative, not merely descriptive or nominalist. They are normative questions because the way we frame the answers indicates what we ask of our political institutions, how we judge their function and their consistency with democratic values and principles. After all, when we express our dissatisfaction with the way in which we are represented, we implicitly allude to some ideal of democratic representation. How could we make our criticisms otherwise? This question allows me to clarify the reasons why the topic of democratic representation is also relevant to political theory. Undeniably, if we endorse democracy as the norm of a legitimate government and representation as its necessary denial we are left with little to say about our political regimes except that they are a mockery of the norm. The paradox being that since our condition is a fact this “science” confronts us with, we are fated to accept it while denying it the honorable status of the political. If our states are simply and necessarily elected aristocracies or oligarchies, political theory is stuck between the proverbial rock and a hard place. It can either capitulate to positivistic behaviorism and the science of public opinion surveys, or become a hopeless lament of our political condition. The former makes a critical vision literally inconceivable; the latter deprives a critical vision of any substance since there is nothing worth criticizing in a world congenitally lacking in politics. A de-normativized realism would invariably become the only theoretical dimension of our political discourse. Yet its claim for a disenchanted objectivity notwithstanding, the electoralist paradigm reflects a political attitude that is not ideology-free or neutral. It suggests, quite explicitly, what citizens and political theorists either should do or should abstain from doing because it tacitly assumes that citizens should not judge representative institutions from the perspective of normative democratic premises since these are at best ideals with no connection to reality and at worst strategically deployed ideological discourses, and it tacitly assumes that political theorists should not go beyond an analytical understanding of the way institutional and electoral mechanisms function if they are to avoid slipping into ideology. How could we demand that our governments act in a way they were not designed for? If it is true that the democratic evolution left the central institutions of representative government unchanged, then it is futile to speak of a 13

INTRODUCTION

“crisis of political representation.” It is just as futile to consider representation a betrayal of democratic promises, or even to express dissatisfaction with the way our government represents us because this would imply that we have an ideal of representation which is democratic for reasons that go beyond electoral consent. Yet, as the theory goes, the representative system can make no democratic promises beyond universal suffrage. Thus whether or not the government of the moderns is democratic depends on how elites are selected and how their selectable characteristics are formed. The extent to which representation is democratic relies on the extent to which these characteristics are not associated with inborn qualities but can be de jure acquired by all. Schumpeter’s classical formulation still seems to be the best rendering of our system of government: what makes governments democratic is the equal right and possibility citizens have to elect and be elected, to dismiss and be dismissed.35 Elections simultaneously separate and link citizens and government. They create a gap between state and society at the same time as they allow each to communicate, and even conflict with one another, but never intermingle. As the only institutional site of popular will and the point of contact between the parliament and the extraparliament, elections can be seen from different political angles. They can be used to recreate the body of the sovereign at the symbolic and institutional level, thereby dampening social and political conflicts, and periodically restoring the balance between legitimacy and legality. They can also serve as a provisional truce between the institutional powers and the sovereign that keeps the conflict alive yet never creates a stable balance between the two. Or, as the history of European socialist parties shows, they can serve as a substitute for revolution, a legalized battle that, while de-radicalizing social claims, carry out the civic function of educating the formerly excluded to citizenship and making them identify with the nation. Whatever the role elections have played in theory and practice, popular mobilization has always been, and still is, contingent upon the existence of exceptional political circumstances; it is not a precondition of the electoral procedure, whose aim is actually to make people’s direct participation inessential to the performance of deliberative institutions. The deterrent power of elections lies in their ability to stimulate decisional activism in those who can be held accountable: the representatives, not the people. Elections make apathy, not agency, the main quality of popular sovereignty. A post factum strategy of control, they make citizens’ participation during the period between elections superfluous, and in 14

INTRODUCTION

this sense make democracy an accessory to representative government. Politicians are sufficiently constrained by their concern with polls.36 Their ambiguous character explains why elections make representative government amenable to democratization but never truly democratic. The dilemma remains. If elections alone qualify representative democracy then it is hard to find good arguments against the critics of contemporary democracy who, from the left and the right, set out from time to time to unmask the role of the people as a “mere myth.” It would be just as hard to devise criteria to detect and obstruct the oligarchic degeneration and corrupting practices of representative institutions. The very proposal to extend the meaning of democratic deliberation to include the informal discursive character of a pluralistic public sphere of associations, political movements, and opinions risks looking like an ideological refurbishment, functional to the new communicative strategies for elite selection. Indeed, it is a fact that only the elected have both deliberative and decision-making power, unlike the citizens, whose freedom to discuss and criticize proposals and policies does not ensure that their opinions will affect the legislative setting. In addition, given the alleged undemocratic nature of representative government, the very attempt to resort to the model of mixed government in order to claim (contra its critics) that representative government has a democratic dimension is bound to fail. Indeed, unlike classical mixed government, in which the people had after all a direct although limited say in political deliberation, a government that relies only on electoral participation resembles an authorized oligarchy rather than a mix of democracy and aristocracy. Yet notwithstanding the fact that the institutional history of representative government resembles a story that has not been substantially edited since the eighteenth century, the adoption of universal suffrage has produced radical changes that cannot be appreciated unless we review the overall political life generated by the representative process.37 Democratic society reveals the limits of a conception of representation as an individual-to-individual relation between the candidate and the electors sealed by elections. Since leaders and institutions are susceptible to organized social influences more than to the influence of scattered individuals, the dualism between representative institutions and society hardly serves its intended role.38 It is thus both timely and constructive to approach the subject of political representation from the perspective of democracy rather than as a betrayal of it. A democratic theory of representation compels us to go beyond the intermittent and discrete series of electoral instants (sovereign as the 15

INTRODUCTION

authorizing will) and investigate the continuum of influence and power created and recreated by political judgment and the way this diversified power relates to representative institutions.39 While it is true that the will cannot be represented, it is also true that judgment, which is an essential faculty in a political order based on opinions, majority rule, and indirect politics, can be represented. Approaching representation and participation from the perspective of judgment rather than the will makes us fully appreciate the worth of indirectness in democratic politics. Indirectness (and speech as the highest form of indirectness) makes room for deliberation by encouraging the distinction between “deliberating” and “voting.” A deliberative form of politics favors representation and meanwhile fosters a relationship between the assembly and the citizens that enables the demos to reflect upon itself and judge its laws, institutions, and leaders. In a word, representation can encourage political participation insofar as its deliberative and judgmental character expands politics beyond the narrow limits of decision and voting. It can be a mechanism of democracy’s self-creation and improvement.

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Representation and Democracy In that it is both an aspect of electoral behavior and a mechanism for determining government’s responsiveness to the public, representation has acquired the status of a democratic institution in political science. This despite the fact that political representation is not associated exclusively with democracy (it predates modern democratic states and exists in states that are not democratic); in fact, its relation to democracy is permanently subject to debate. Yet the picture becomes more complicated when we move from political practice and survey analyses to political theory. Indirectness in politics has never enjoyed much currency in democratic theory. Direct rule was generally seen as paradigmatic because it entails a fusion of “talking” and “doing” in political action and the full participation of all citizens in the decision-making process.1 Rather than naming a political order, “today, in politics, democracy is the name of what we cannot have—yet cannot cease to want.”2 The modern “discovery” of representation has not seriously challenged this paradigm. Participatory democrats disdain representation because it justifies a vertical relation between the citizens and the state and promotes a passive citizenry and an elected aristocracy.3 Procedural theorists of democracy give representation merely an instrumental justification and see it as a useful “fiction” that applies the division of labor to governmental functions.4 Democratic theorists give representation a cold reception because it refers to political processes that are internal 17

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to the state, rather than to a form of democratic participation. Indeed, its democratic credentials come from election in time1 and time2, events that tell us representation’s inception and termination, not its life span. As a result, political theorists emphasize the nondemocratic nature of representation, notwithstanding the successful performance of representative democracy. “Democratic theory has little to gain from talking the language of representation, since everything necessary to the theory may be put in terms of (a) legislators (or decision-makers) who are (b) legitimated or authorized to enact public policies, and who are (c) subject or responsible to public control at free elections.”5 In other words, the main concern of theorists of democracy should be the citizens’ “opportunity” “to practice direct democracy” in a representative system, rather than representation itself.6 According to Jane Mansbridge, in order to successfully address the issue of the norms appropriate to a representative system, the first order of business is to “assume” that “representation is, and is normatively intended as, something more than a defective substitute for direct democracy.”7 The implication being that theorists intuitively assume the democratic norm as direct rule by the citizens rather than representation, the consolidation of representative institutions and the reliability of electoral behavior surveys notwithstanding.8 It seems there is no way to make representation what it cannot be: a valid substitute for direct democracy.

Representation in Democratic Theory and History Despite the fact that theorists have trouble squaring the circle of the ideal (direct presence) and the real (indirect action) in democracy, significant historical examples invalidate the “defective substitute” argument. I shall cite two cases where democratization took the path of representation, one pertaining to civil society, the other to state institutions. The first example, the social movements that swept Europe during the late 1960s, is relatively recent. Although they are generally associated with assembly-driven behavior and the call for direct democracy, issues of representation defined the democratic goal of those social movements, which in large part began by denouncing either the lack or the emptiness of representational rights in the workplace, the university, and the high schools. This was particularly true in Italy, where factory strikes followed the dismantling in the mid-1950s of the workers’ representative structures, a management decision whose goal was to gain full control over the organization of the productive processes 18

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(scheduling, hiring and firing criteria, wages, benefits, and environmental policy). When strikes began in the fall of 1969, Italian industrial relations were despotic in the classical sense of the word, and resembled European absolutist states before the parliamentary revolutions.9 This made the workers’ claim for inclusion in the factory system of representation foundational rather than simply instrumental. It implied a radical transformation of how collective objectives became issues of common interest and how people wanted to be recognized within the framework of extant power relations.10 The Italian case is reminiscent of the way the protagonists of the first constitutional revolution saw the struggle for political representation. Their demand that legislative power be transferred from the king to an elected parliament, and furthermore that seats in the House of Commons be assigned in proportion to the population of the counties of England, amounted to a claim for popular sovereignty. The Levellers foresaw the democratic implications of their call for representation when they claimed that the central problem of popular sovereignty (which they identified before any doctrine of popular sovereignty was formulated) was that of setting limits on a government that derived its authority from the people themselves, who, for this very reason, vindicated the right to a voice through free speech and the ballot.11 The designation of representatives in recurrent elections was the basic requisite of sovereignty or the liberty of the people. “If therefore the knights, citizens and burgesses sent by the people of England to serve in parliament have a power, it must be more perfectly and fully in those that send them. But (as was proved in the last section) proclamations, and other significations of the king’s pleasure, are not laws to us.”12 Algernon Sidney was arguing against Robert Filmer, whose defense of absolute monarchical sovereignty was based on the idea that the parliament should be consultative, not representative, thus explicitly linking representation to a popular (democratic) redefinition of sovereignty. As Mark A. Kishlansky’s painstaking analysis of the birth of the electoral process in seventeenth-century England shows, there was a chronological and functional link between the adoption of the electoral method to appoint lawmakers, the transformation of the elected from delegates to political representatives, and the emergence of ideological forms of grouping.13 Although elections have been considered an aristocratic institution since classical times, in modern states the electoral process stimulated two movements that became crucial to the birth of democracy. On the one hand, it touched off a separation between society and politics, or better said a transition from symbiotic relationships between the 19

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delegates and their communities to forms of unification that were thoroughly symbolic or politically constructed. On the other, the disassociation of the candidates from their social class foregrounded the role of speech and ideas in politics and finally the unifying function of representation. A similar process took place in France with the revolution of 1789. Here too, elections gave birth to entirely new cleavages and identifications made according to ideological criteria by deliberation and voluntary associations among legally equal voters. Clubs and political aggregations overtook the whole country, binding people who lived far away and severing neighbors.14 Clearly, representation activates a kind of political unification that can be neither defined in terms of a contractual agreement between electors and elected nor resolved into a system of competition to appoint those who are to pronounce the general interest of all, as the eighteenthcentury framers of representative government thought. A political representative is unique not because he substitutes for the sovereign in passing laws, but precisely because he is not a substitute for an absent sovereign (the part replacing the whole) since he needs to be constantly recreated and dynamically linked to society in order to pass laws.15 This renders the view of elections as a selection mechanism for the political leadership incomplete, although elections do produce a political class and initiate a division of labor within the polity. Elections always contribute to the formulation of the country’s political direction, a process the citizens activate and sustain through multiple forms of political presence, neither just as electors nor through permanent mobilization.16 On this ground, it is correct to say that democratization and the representative process share a genealogy.17

Three Theories of Representation Kishlansky’s analysis of the English case implies that elections and representation should be analyzed in terms of the relationship between state (the government) and civil society. Although the electoral structure of representation has not changed much in two centuries despite the extension of suffrage, theorists should not overlook the crucial changes the democratic transformation engendered in the functioning and meaning of representation.18 The emergence of the “people” (the citizens) as an active political agent did not merely refurbish old institutions and categories. The moment elections became an indispensable and

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solemn requirement of political legitimacy, state and society could no longer be severed and the drawing of the boundaries separating—and connecting—their spheres of action became an ongoing issue of negotiation and readjustment. Representation mirrors this tension. It could be said that it reflects not simply ideas and opinions, but ideas and opinions about citizens’ views of the relation between society and the state. Any claim that citizens bring into the political arena and want to make an issue of representation is invariably a reflection of the struggle to re-draw the boundaries between their social conditions and the legislation. Three theories of representation can emerge when we look at how representative government has operated throughout its two-hundred year history, from early liberal parliamentarism to its crisis and finally its democratic transformation after World War Two.19 Alternatively, we can say that representation has been interpreted according to three perspectives: juridical, institutional, and political. They presuppose specific conceptions of sovereignty and politics and, consequentially, specific relationships between state and society.20 All of them can also be used to define democracy (direct, electoral, and representative, respectively). Yet only the latter makes representation an institution that is consonant with a pluralistic democratic society. These three conceptions are recognizable in the writings of the authors I have chosen to analyze (certainly Rousseau, Sieyes, and Condorcet). I must caution that they belong to a time when representative government had not yet become the object of sophisticated political science and practice, and society and state institutions had not yet undergone a democratic transformation. Yet in spite of their pristine straightforwardness, or perhaps because of it, their conceptualizations allow us to easily disaggregate the complex phenomenon of representation along the lines of the identity of the demos and the forms of their political presence. The juridical and the institutional theories are closely interconnected. They are both grounded in a State-Person analogy and a voluntaristic conception of sovereignty, and they are rendered in formalistic language. The juridical theory is the oldest and requires more attention because it set the model for the institutional one, which was its gemmation. It predated the modern conception of state sovereignty and the electoral designation of lawmakers. It is called juridical because it treats representation like a private contract of commission (granting “license to perform an action by some person or persons who must possess the right to perform the given action themselves”).21 Delegation with binding

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instructions and alienation with unbounded trust have traditionally been the two extreme poles of this model, the former epitomized by Rousseau and the latter by Hobbes (although he did not theorize a representative “trusteeship”) and moreover Sieyes and Burke (although the latter did not ground representation on a contractual base).22 Regardless which of the two poles it emphasizes, the juridical model configures the relationship between represented and representative along the lines of an individualistic and nonpolitical logic insofar as it presumes that electors pass judgment on candidates’ personal qualities, rather than their political ideas and projects. According to this approach, representation is not and cannot be a process, nor can it be a political issue (implying for instance a claim of representativity or fair representation) to begin with for the simple reason that, in Pitkin’s words, representation would be “by definition” “anything done after the right kind of authorization and within its limits.”23 As Anthony Downs has candidly conceded in commenting on the effects of the application of the private (as contractual) model of representation to democracy he endorsed, “there is nothing for representatives to represent.”24 The juridical theory of representation clusters issues of state power and legitimacy within the logic of presence/absence (of the sovereign) and detaches representation from advocacy and representativity, the two political manifestations that spring from its unavoidable relation to society and citizens’ political activity, as I will explain in this chapter. With Hobbes, its first modern interpreter, this approach developed into a technology of institution-building that became enormously influential for both the theorists of representative government (certainly Sieyes) and their critics. For instance, during the crisis of parliamentarism, at the beginning of the twentieth century, Carl Schmitt revived the constructivist function of representation conceived by Hobbes and Sieyes and used it to make the absent present, or to reconstruct the organic unity of the volk above (and against) the pluralism of social interests and through the personification of the sovereign (in the leader or f¨uhrer). His goal was a more strongly unified state than was possible through the parliamentary compromise among interests or “government by discussion.”25 In its radicalism, Schmitt’s case is a useful example of the incompatibility between representation as a technique for achieving a (mystical) unity of the community and political representation. The juridical theory of representation opened the door to a functionalistic justification of political rights and representation, citizenship, and decision-making procedures. Its rationale became the backbone of liberal representative government and, later on, electoral democracy. It is 22

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based on a clear-cut dualism between state and society; it makes representation into a rigorously state-centered institution whose relation to society is left to the judgment of the representative (trustee); and it restricts popular participation to a procedural minimum (election as magistracy designation). In sum, the state-centered perspective implied by the juridical and the institutional theories prefigures two possible scenarios. On the one hand, as Rousseau argued, representation has no place in the discourse of political legitimacy for the obvious reason that it means transferring the power authorizing the use of force (the sovereign power) from the commonwealth as a whole to its part(s). On the other hand, as Sieyes argued, representation can be a strategy of institution-building on the condition that the subjects are given only the job of selecting the lawmakers. In this case also, sovereignty is essentially voluntaristic, its will narrowed to the (electoral) will with the result (and conscious intent) that the sovereign nation speaks only through the voice of the elected. On this account, parliamentary sovereignty can be seen as an electoral transmutation of Rousseau’s doctrine of the general will, although, paradoxically, once transferred to the represented Nation, that will becomes a strategy for “blocking the way to democracy.”26 Both the juridical and the institutional theories of representation assume that the state (and representation as its productive and reproductive mechanism) must transcend society in order to ensure the rule of law; and that the people must hide their concrete and social identities to make public officials impartial agents of decision. As we shall see in chapter 4, the juridical identity of the elector/authorizer is empty, abstract, and anonymous, its function consisting in “designating” professional politicians who make decisions to which electors voluntary submit. Hence, “what we find in the system called representative is that it is not a system of representing the people and the will of the nation, but a system of organization of the people and the will of the nation.”27 The underlying assumption of the split between “the man” and “the citizen” that Karl Marx so famously denounced for its asinine hypocrisy was that the political sphere must be independent from the social sphere (and in particular economic interests and religious beliefs) in order for legal equality and the impersonal organization of the state to be obtained. This is the axiological premise common to both these theories of representation and the logical outcome of their constructivist approach to sovereignty.28 They emerged and were shaped before the democratic transformation of society and the state and remained essentially impermeable to it. 23

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The third theory breaks with these two models. It creates a new category altogether insofar as it considers representation dynamically rather than statically: representation is not meant to make a preexisting entity—i.e., the unity of the state or the people or the nation—visible; rather, it is a form of political existence created by the actors themselves (the constituency and the representative). This theory vindicates the specificity of political representation in relation to all other forms of mandate and in particular the private or contractual scheme of authorization. Representation does not just pertain to government agents or institutions, but designates a form of political process that is structured in terms of the circularity between institutions and society, and is not confined to deliberation and decision in the assembly. “It is the task of the popular representatives thus to coordinate and criticize. The necessary unity does not logically follow from the unity of the representer, as Hobbes would have it, but must be created and constantly re-created through a political process of dynamic activity.”29 Its gradual consolidation during the twentieth century along with the adoption of universal suffrage (although an earlier formulation can be found in John Stuart Mill’s arguments for proportional representation) reflect the democratic transformation of both the state and society and the growth of the complex world of public opinion and the associational life that gives political judgment a weight it never had before. Depicted by Carl J. Friedrich in a chapter that is a masterpiece of clarity, we owe its most democratically oriented reformulation to Hannah Pitkin: “representation here means acting in the interest of the represented, in a manner responsive to them.”30 The political conception of representation claims that in a government that derives its legitimacy from free and regular elections, the activation of a communicative current between civil and political society is essential and constitutive, not just unavoidable. Reversing the maxim held by the previous two theories, it claims that the generality of the law and the standards of impartiality implied by citizenship neither should nor need be achieved at the expense of the political visibility of “the man” (read, “social” identity as distinct from and opposite to “political” identity).31 The multiple sources of information and the varied forms of communication and influence that citizens activate through media, social movements, and political parties set the tone of representation in a democratic society by making the social political. They are constitutive components of representation, not accessories. Will and judgment, immediate physical presence (the right to vote), and a mediated idealized presence (the right to free speech and free association) are inextricably 24

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intertwined in a society that is itself a living confutation of the dualism between the politics of presence and the politics of ideas since all presence is an artifact of speech. The aim of this book is to elucidate the political conception of representation. It is a democratic revision of Rousseau’s theory of popular sovereignty. This is not paradoxical. As we shall see, the democratic revision of Rousseau’s absolute collective decisionism began the moment judgment (deliberation) challenged the monopoly of the will in the definition and practice of political liberty. I call it a “revision” of popular sovereignty rather than a demolition, because I argue that representation does not erase the center of gravity of the democratic society (the people). Political representation scorns the idea that electors rather than citizens hold this center, that the act of authorization is more important than the process of authorization. It marks the end of a yes/no politics and the beginning of politics as an open and common arena of contestable opinions and revisable decisions. It amplifies the meaning of presence itself because it makes voice its most active and consonant manifestation and judgment about just and unjust laws its content. One might say that political representation provokes the dissemination of the sovereign’s presence by making it an ongoing and regulated job of reconstructing legitimacy.32

Continuity, Rupture, and People’s Negative Power When liberal constitutionalism set itself up as a conscious project of state-building in the eighteenth century, political leaders and theorists thought that the dualistic space of citizens and representative institutions produced by elections was the sine qua non of impartial and competent lawmaking because it protected the deliberative setting from both the tyrannical passions of the majority and the particular interests of factions. This belief permeated the writings of authors as diverse as Madison and Burke, who advanced an elitist rendition of Rousseau’s public reason by making it the achievement of virtuous selected citizens. The problem, though, is that since leaders and institutions are vulnerable to, rather than impartially detached from, social influences, this dualism did not, and does not, function as intended. Only if representatives were impartial, virtuous, and competent motu proprio could insulating their will from the citizens solve the problem of partiality and corruption. If that were the case, though, elections would be pointless. 25

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Yet the choice of election as a method of selection proves two things: first, neither the people nor the government can count on luck for good lawmakers; and second, there is no such a thing as a naturally selected and self-referential aristocracy. Although elections are a formally limited method of control because post factum and only indirectly anticipatory, they testify to the fact that in a democracy representatives should not and never can be insulated from society. Historically speaking, this was why elections were synonymous with democracy and why the call for representative institutions was synonymous with the people’s claim for sovereignty. In amending the minimalist conception of democracy, I would say that electoral competition has two outstanding virtues, not one: while it teaches the citizens to rid themselves of governments peacefully, it also makes them participants in the game of ridding themselves of governments. “The apparent consensus that elections are significant conceals deep disagreements about whether and how they serve to link citizens to policymaker.” This is why the right to vote does more than just “prevent civil war.”33 The right to vote engenders a rich political life that promotes competing political agendas and conditions the will of the lawmakers on an ongoing basis, not just on election day. It encourages the broad development of extraelectoral forms of political action, although with no guarantee that political influence will be distributed equally or become authoritative. Furthermore, it highlights the paradox of the instrumentalist view of representation, which on the one hand refers to the people’s opinion as the source of legitimacy and on the other claims that representatives make good and rational decisions as long as they shield themselves from “a forever-gullible popular opinion.”34 The paradox of this nonpolitical (as competence-driven) approach to politics is that despite its claim to be the hallmark of economic and civil liberties and constitutionalism, it paves the way to a theory of institutions that is just as unsympathetic to representation as Rousseau’s theory of direct government. It presumes that the representative must be deaf to public opinion in order to make good decisions. As I shall explain in the last section of this chapter, at the heart of this paradox lies the often unspoken formalistic view of citizens’ participation as the electoral verdict of the sovereign (magistracy authorization) and a narrow view of democratic deliberation as a process that involves exclusively the elected and refers to authoritative decisions. The result is an “incomplete and distorted view” of what representatives are and how they should act.35 The predictable conclusion is that election works to empower a professional class that deliberates over the heads of the citizens, whose only 26

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function is to “accept” or “refuse” their leaders and never interfere with them while they go about their business since they “must understand that, once they have elected an individual, political action is his business and not theirs.”36 Important attempts have been made to encourage a nonformalistic interpretation. As a matter of fact, since its constitutional inception, representative government has belonged to a complex and pluralistic family whose democratic wing was not the exclusive property of those who advocated for participation against representation. As this book argues, eighteenth-century American and French revolutionaries used two distinct terms to denote their innovative enterprises: representative government and representative democracy. Although both terms were sometimes used synonymously, the more perceptive political leaders were aware of the differences. For instance, Sieyes never used the latter, but Condorcet, who thought that the sovereign citizen should have the rights and the “legal means” to be active whenever he/she deemed it “useful or necessary,” did. Appointing representatives was not the only way to participate or the only function attached to the droit de cit´e. Retrieving Condorcet’s insight, I argue that the specificity and uniqueness of modern democracy is necessarily based upon, although not confined to, the casting of “paper stones” by means of the ballot.37 It lies in the circularity elections create between the state and society and the continuum of the decision-making process that links the citizens and the legislative assembly. This is also the rationale of the discourse theory of popular sovereignty, an important contribution to a democratic interpretation of representation. Yet the discourse theory provides only a partial picture of the political process of representation because while it stresses communication as “the socially integrating force” unifying the parliamentary and extraparliamentary moments, it is insufficiently attentive to the moments of rupture of that communication, moments of circuitry that bring to the floor by default the contribution of representativity to the democratic legitimacy of representation.38 In Hegelian style, J¨ urgen Habermas’ model of mediation explains the organic relation between the state and society much better than its crises, when the continuity between the representatives and the citizens is interrupted and the latter are likely to generate extraparliamentary forms of self-representation; when forms of political spontaneity (new movements) break into the political scene and enrich the plurality of voices. The phenomenon that demands our attention lies between the state of organic normalcy and the extreme event of a violent and radical break of the legal order, when through their active and creative presence citizens 27

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disclose and denounce the political distance between the “real” and the “legal” nation, but do not reclaim the decision-making power. In a remarkable 1789 essay on types of despotism (discussed at length in chapter 6), Condorcet classified the type of arbitrary rule likely to arise in a government wherein lawmaking results from citizens’ consent to be represented as “indirect despotism.” Indirect despotism “occurs when the people are no longer truly represented or when it [the legislative body] becomes too unequal” to them.39 It brings to the fore issues of political mandate and the sympathetic link between the elected and the electing citizens, two essential components of political representation that cannot be explained within the context of politics as will (nor that of electoral democracy) but rely heavily on the role of judgment in political deliberation outside and inside the legislative body. This chapter and the third one are meant to set up the main coordinates for the explanation of these components. Here I need simply to point to the fact that this new form of arbitrariness that representative government is primed to engender is not tyrannical in the traditional sense because it does not take the form of a violation of constitutional rules and legal norms. This is the reason why “indirect despotism” does not justify violent forms of disruption of the legal order or exceptional means. It does, however, justify forms of political practice that flag the need to overcome the division within the symbolically unified citizenry. The language of political discourse like that of moral discourse “must be stable enough so that what a man says really does constitute taking a position, really tells us something about him”; continuity through the electoral term is the norm we expect representatives to comply with so that we can recognize them, so to speak, or judge them always, not only at the end of their electoral mandate. Since in accepting their candidacy they have accepted to submit their ideas and actions to our judgment, it is not up to them alone to assess the significance of the positions they choose freely and responsibly to take; “it is not up to [them] alone to decide whether [they have] adequately supported and elaborated the initial claim [they have] entered.”40 A democratic theory of representation should be able to explain the events of continuity as well as of crisis and moreover encompass the idea that the sovereign people retain a negative power that allows them to investigate, judge, influence, and censure their lawmakers. This power is negative for two important reasons: its goal is to stop, curb, or change a given course of action taken by elected representatives; and it can be expressed both via direct channels of authoritative participation

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(anticipated elections, referendum, and also recall if wisely regulated so that it is not immediate and above all excludes imperative mandate or instructions) and through indirect or informal kinds of influential participation (social forums, movements, civil associations, media, street demonstrations).41 The negative power of the people is neither independent from nor antithetical to political representation. Moreover, it is an essential ingredient of representation’s democratic performance, ingrained as it is in the very character of this Janus-faced institution with one face turned toward the state and the other toward society. Representativity is, we shall see in a while, the ideal norm in relation to which citizens’ negative power may be depicted both as an invigorating force and as an indicator that like a thermometer signals the status of the “integrating force” linking the elected and the assembly they seat with the society. As the symmetrical opposite of communication as a “socially integrating force,” citizens’ negative power matches the norms of deliberative communication (reciprocity and publicity) to the representative’s representativity. In sum, democratic theory needs to amend both the minimalist and the Habermasian deliberative conceptions in order to comprehend the complex world of representative democracy. In the case of the former, focusing on voting as the temporary resolution of political conflict tells us the location of the authorized “will” to make laws but does not provide us with the complete picture of the democratic game that puts that will in motion and shapes it. In the case of the latter, focusing on the “integrating force of communication” sheds insufficient light on the political frictions that representation’s representativity brings about, a quality that is both a matter of degree and oscillation and an ideological construction that is always open to revision and reassessment. This perspective prefigures some important changes in how representation has been interpreted vis-`a-vis democracy and sovereignty. On the one hand, the idea of representation as a political process contradicts the static and privatistic or juridical paradigm of contract that has confined (and still confines) the relationship between representatives and represented to electoral authorization as a choice about the candidate’s personal merits.42 On the other, it challenges the modern doctrine of sovereignty that has facilitated the transfer of the language of the contract to political representation. Any analysis of the status and norms of representation (its democratic consistency) leads inevitably to the meaning of popular sovereignty (or the articulation of equality) and the kind of participation it presumes.

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Discord and the Ballot, or Presence through Speech and Ideas “A people of electors by itself is not capable of initiative, but at most of consent”; yet a representative democracy is not a “crowd of inorganic voters” and its citizens are capable of taking direct and indirect initiatives.43 Political representation invalidates the opinion that society is the sum of disassociated individuals who compete and join together, vote and aggregate preferences by discrete acts of free choice and instrumental calculus. It counters a conception of democracy as a numerical multitude of single or associated units forced to delegate their power for the simple reason that a multitude cannot have a will, cannot exercise any power or be a government. A representational politics renders democratic society an intricate fabric of meanings and interpretations of citizens’ beliefs and opinions about what their interests are—beliefs that are specific and differentiated and subject to variation along with people’s actual lives. Democracy is unique because it extracts the strength for unity from differences (“people can bond together in difference without abstracting from their differences”).44 It is about the rules of the game but also the actors who play by them, the way they play and the means by which they play. Rousseau used the argument of the “force of numbers” to counter the classical antiegalitarian appeal to the qualitative and inestimable force of competence. He had to make the popular sovereign into a body of formally identical units in order to accredit the collective with the same unitary will of the individual sovereign. His goal was not to defend democracy but to counter the traditional principle of competence (be it cognitive, moral, or religious) by which means post-Roman European societies had tackled the relation between power and norms. Theorists of representative government have used Rousseau’s formalism as their guide and have made the right to vote the bottom line of a democratic legal order.45 Their argument is that since representation is a vehicle of decisionmaking, deliberation (within the legislative body) and aggregation (of the votes electing the legislators) should be thought about together.46 Yet although electoral authorization is essential in order to determine the limits and responsibility of political power, it does not tell us much about the actual nature of representative politics in a democratic society. “Although election ‘makes’ representation, nonetheless elections do not ‘make’ the representatives.”47 At a minimum, election defines responsible or limited government, yet not representative government. In representative politics, votes are not mere quantities. They mirror the complexity of opinions and political influence, neither of which 30

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are arithmetically computable entities. When we translate ideas into electorate votes we sometimes tend to forget this complexity and to assume that votes reflect individual preferences rather than render opinions and beliefs. Much of the argument that the aggregation of votes does not exhaust the expression of opinion is familiar from critiques of social choice theory. Yet some further observations can be thrown in to amend a reading of democratic voting as a participation that serves to select decision-makers not policies. Contrary to votes on single issues (direct democracy), a vote for a candidate reflects the longue dur´ee and effectiveness of a political opinion or a constellation of political opinions; it reflects citizens’ judgment of a political platform, or a set of demands and ideas, over time (representative democracy has thus been regarded as a time-regime).48 Direct voting (or, in Condorcet’s words, “immediate democracy”) can be represented as a discrete series of decisions (pointillist sovereignty). But when politics is scheduled according to electoral terms and the political proposals the candidate embodies, opinions create a narrative that links voters through time and makes ideological accounts a representation of the entire society, its aspirations and problems.49 This explains why it is that opinions never have equal weight, not even in the hypothetical case of two different opinions receiving the same number of votes. If the weight of opinions were equal, the dialectics of opinions, and voting itself, would make little or no sense. Voting is an attempt to give ideas weight, not to make them identical in weight or with weight.50 This might help clarify why voting for candidates (elections) “prevents civil war,” to paraphrase the argument of minimalist theorists of democracy. Deterrence is an important explanation that pivots on expectations of both the candidates (reelection) and the electors (future victory of their party). As Dahl suggested half a century ago, elections prevent civil war because losers know they will have another chance in the next election and it is worth forgoing certain bloodshed and chaos for the chance for power the next time around. Electoral authorization and periodical elections is all that is required here. Yet deterrence is a reasonable calculus also because votes reflect opinions only approximately. If those who lose an electoral competition or do not get reelected choose not to rebel and abide by the rules of the game it is also because they know their cause is not absolutely lost and can do better next time. (Most of the time an electoral defeat is followed by a process of critical self-analysis by which the losers try to understand what went wrong in their communication with the electors and what can be done to make their ideas better appreciated.) Both winners and losers know that votes 31

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themselves never exhaust their thoughts and actions and there is always room for concern or for hope. One might thus say that representative democracy reveals the “miraculous” work of opinions and ideological narratives in a way that direct democracy cannot because it compels citizens to transcend the act of voting in the effort to repeatedly reassess the correlation between the weight of ideas and the weight of votes (to preserve or achieve or increase consent). In direct democracy any vote is like a new beginning insofar as it consists in the counting of wills or preferences but is not, nor can it be, representative of ideas; hoping for “the next time” makes no sense when any decision is absolute because it makes opinions identical with the will and lacks any historical link to past and future chains of opinions and decisions.51 In representative democracy the chain of opinions, interpretations, and ideas that seek visibility through voting for a candidate or a party consolidates the political order; discord becomes a stabilizing factor, an engine of the entire political process.52 It becomes the bond that holds together a society that has no visible center and becomes unified through action and discourse (common experiences of interpretation that the citizens share, tell, recall, and remake incessantly as partisans-friends). As Paine understood, opinions and beliefs can convert power into an endless political process that representation actualizes because it exalts the public world of ideas and the medium of speech, both of which make our votes more meaningful than an infinitesimal portion of the general will. Very effectively, Claude Lefort has stressed the nonfoundational nature of modern (read “representative”) democracy, which “by virtue of discourse . . . reveals that power belongs to no one; that those who exercise power do not possess it; that they do not, indeed, embody it; that the exercise of power requires a periodic and repeated contest; that the authority of those vested with power is created and re-created as a result of the manifestation of the will of the people.”53 This highlights the difference between aristocracy and elected representatives, because although election serves to select those who rule, it disassociates rule from persons and disembodies it. The elected represent an “impersonal power,” a power “in office” that is “substituted for personal power.” Depersonalization is a crucial solution “to the problem of political power”: it frees “the citizens from the fear of the persons to whom power is entrusted,” no matter whether the persons are some or many.54 On this assumption, I shall argue in this book that the association between representation and presence (of the sovereign) is misleading because it presumes a personification of power. The indirect character that 32

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politics acquires in representative democracy contradicts the idea that there is something preexisting it, like for instance a single or collective sovereign that seeks pictorial representation through election.55 Political representation is a political function, the highest in a democracy because it produces laws; it is not merely symbolic and should not be confused with the head of state’s function of representing the unity of the nation. The ear is the sensory organ that corresponds to it rather than the eye because ideas are its form, not the physical being, and voice its visibility, not the standing presence. Ideas and opinions are not like dispersed atoms or accidental entities that magically appear in the mind of the voters. As opinions or beliefs, they must have been formed and developed by men and women together who experience a combination of economic, cultural, or stereotypical factors. Association and communication—either scattered or organized—are essential in the formation of opinions, electoral issues, and the selection of candidates. The “counting of votes is the final manifestation of a long process” in which all participate in different ways and with different prospects of influence and impact.56 Political representation is the dynamic synthesis of two forms of representation—electoral or formal, on the one hand, and virtual or ideological, on the other. It is the medium in the unifying work of opinion formation, radiation, and persuasion, and of the political action people perform in the most democratic sense—directly and publicly, by talking and listening, writing and reading, associating and demonstrating, petitioning and voting, and voting again.57 To sum up, limited government requires elections, but it is advocacy and representativity (the link to society) that give the originally undemocratic institution of representation a uniquely democratic feature and raise, when they are defective, the specter of a “crisis.” Political representation illuminates and emphasizes the querulous nature of democracy. In the Republic, Plato described (and criticized) democracy not merely as a system of flat egalitarianism blind to individual specificity in which selection by lot and rotation operate instead of co-optation of the competent for function allocation. In Plato’s description, democracy is first and foremost a system in which all citizens disagree over the control of government because all of them claim a say in dealing with and resolving that disagreement. However, like participation in election, rotation and lottery dissipate some disagreement but do not silence quarrel among citizens. But why do citizens quarrel if they know in advance they will all rule sooner or later or, in other words, that they will have another chance to get their representative elected and their party gain the majority?58 33

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Democratic theorists overestimate the choice of persons and underestimate, so to speak, the choice of policies and ideas that the choice of persons indicates or represents.59 Yet the character of democratic competition is shaped by the rules of the game and also the means the citizens use to express and resolve their disagreements—that is, speech—regardless of whether their presence is direct or electoral.60 Not by chance, classical writers who described Athenian democracy stressed that all citizens had an equal chance not only to compete for power but also to propose a law and win a majority in the ekkl¯esia. The Pseudo-Xenophon’s criticism of the Athenian constitution in the name of aristocratic competence is the first relevant document that attacks democracy because it applies lottery and rotation to all citizens indistinctly, not to the best of them only or the equals in kind. A system of government in which the equals are treated equally is not necessarily democratic, although it is certainly egalitarian. This is, for instance, what distinguished Athens from Sparta and why the former rather than the latter was known as a democracy although both used lottery and rotation to select magistrates, required the citizens’ direct presence in the assembly, and finally confined citizenship to a relatively small pool of free native adult men. It is interesting to see that Rousseau (an admirer of Sparta) scorned both representative and direct democracy on the same grounds because since both employed speech as a form of political action (or indirectness) they had to use competition to win consent (be it on issues directly or for a candidate). In his mind, this made democratic politics into a permanent trial of opinions and consent formation in which rhetoric and evaluative judgment—not presence per se and the will—were essential. Even more interesting is the case of Hobbes, who did not believe that electoral democracy and direct democracy were fundamentally different and that only the former had an aristocratic character. Hobbes understood that democracy is always a mixture of equality and aristocracy insofar as it consists both in the equal right to vote and in the equal right to speak; and speech is the vehicle for individual distinction, plurality, and quarrel that election regulates.61 Democratic society is built around conflict (or “discord” as Machiavelli so aptly called it), not organic unity or harmony.62 This is also reflected in the type of influence or political presence it promotes. Democratic citizens know that uniformity in the distribution of the basic right to vote does not preclude the possibility that their ideas may not be equally influential. Speech and opinion are mediating tools that exalt individual specificity, interject individual differences in public performance into politics, and lift the veil of anonymity and unanimity from 34

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political equality. Speech gives the vote meaning and stimulates evaluation and discussion of articulated beliefs as well as of those who present them. The distinctiveness of the Spartan assembly was based on the lack of individuation in its procedures. Standing, silent presence, and finally shouting yes/no, served to express assent or denial, not to articulate public judgment and raise debate through voting. “The shout was a ritual of affirmation and celebration. As a process, it was both anonymous and unanimous. It was the very opposite of voting.”63 Hence, whether by lottery, rotation, or election, the democratic presence is invariably rooted in the discursive and querulous nature of politics that votes only approximately render and weight. Representation is an institution that celebrates the public role of speech and opinions as the means by which a multitude of concrete individuals overcome their irreducible singularity and converge into common political platforms and intents. It also characterizes the deliberative collective setting, which resembles neither a Platonic symposium of aloof interlocutors nor an impartial jury.64 Citizens who enjoy an equal chance to address their political community (either by direct presence or by representation) invariably perceive the political sphere as an arena that allows them to resolve, and in this sense satisfy, their needs.65 Although not directly instrumental to social interests, democratic politics cannot be a socially disconnected activity. Representation is supposed to reflect/interpret/idealize the nascent political identity of social claims in a society that should afford its citizens an equal right to advocate for their interest and acquire discursive visibility. In sum, the challenge of political representation in a democracy is to nourish the relationship between social conflict and the unifying process of politics so as to ensure that neither succumbs to the pressure of the other.

Partisanship as an Active Manifestation of the General Democracy is “limited conflict” or “conflict without killing”; it is not consensus.66 Yet in order for this to be the case, citizens must consent to certain values or principles, and winners and losers alike must trust their adversaries will give up the guns regardless of how the elections turn out. It would thus be more correct to say that democracy (in that it functions and lasts) requires some basic consensus because it pertains to discord and instrumental reasoning. No matter how minimal the definition of democracy, minimalism seems to come at the end of a more or less successful process that people themselves have undertaken.67 “The fact that 35

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we agree about how particular cases are to be decided . . . shows . . . that the members of the community bring to bear a common set of criteria. Without criteria, tacit or explicit, our verdicts would be jointly inconsistent and at odds with the verdicts of other members of the community. . . . So the possibility of playing the game ultimately rests on the brute fact that we agree.”68 Instrumental and strategic reasoning is sophisticated enough to be a late rationalization of a more or less problematic trial-and-error experience of learning by doing, to paraphrase a pragmatist maxim.69 It is not news to say that, although procedures can head off social disorder, their efficacy is largely dependent on ethical or cultural factors. This is true particularly in the case of representation because the mandate linking the representative to his or her constituency is essentially voluntary and politically constructed; it is not legally binding. Representation consists in a political praxis that “is not merely the making of arbitrary choices, nor merely the result of bargaining between separate, private wants.”70 Instrumental reasoning and compromise occur in the context of a common understanding about the political direction the country should or should not take, with the awareness that it is “not a reality that is objectively given to us in one way or another.”71 On this condition such reasoning is able to distinguish the total enemy and the political partisan, “the bullet and the ballot,” to paraphrase Malcolm X. Most of the time, belief systems and even stereotypical values structure bargaining and strategic reasoning, so that although electors may appear or sincerely try to reason strategically they end up voting “against” or “for” constellations of ideas and beliefs when voting for an individual candidate.72 John Rawls described the “depth” and “breadth” of overlapping consensus—what Hegel would call the “constitutional ethos”—in the following terms: . . . once a constitutional consensus is in place, political groups must enter the public forum of political discussion and appeal to other groups who do not share their comprehensive doctrine. This fact makes it rational for them to move out of the narrower circle of their own views and to develop political conceptions in terms of which they can explain and justify their preferred policies to a wider public so as to put together a majority.73

Political groups (or parties) articulate the “universal interest” from peripheral viewpoints. They are partial-yet-communal associations and essential points of reference that allow citizens and representatives to 36

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recognize one another, form alliances, and moreover situate ideologically the compromises they are ready to make.74 “But in fact, one of the most important features of representative government is its capacity for resolving the conflicting claims of the parts, on the basis of their common interest in the welfare of the whole.”75 As I shall argue in chapter 3, the dialectics between parts and whole explains the complex function of the legislative setting in a representative government as a mediating body between state and society.76 Representation is the institution that allows civil society (in all its components) to identify itself politically and to influence the political direction of the country. Its ambivalent nature—social and political, particular and general—determines its inevitable link to participation. Political representation transforms and expands politics insofar as it does not simply allow the social to be translated into the political, but also facilitates the formation of political groups and identities. Moreover, it changes the identity of the social insofar as the moment social divisions become political or adopt a political language they acquire an identity in the public arena of opinions and become more inclusive or representative of a broader range of interests and opinions. This is necessary if they are to win a numerical majority. Yet strategy is only a partial explanation. The political process of representation filters and sorts out the irreducible partiality of social or cultural identities by making them issues of political alliances and programs. This makes it quite unique and the opposite of the corporatist representation advocated by theorists of “group participation” and pluralist management democracy.77 The implicit assumption of a model of democracy as “decentralized small units” (individual or collective) seeking direct representation in the political arena is the idea that “the immediate co-presence of subjects” should purify politics of ideological manipulation held by parties. The result, however, is that by overcoming the mediated world of “voice and gesture, spacing and temporality,” politics is “avoided” rather than purified.78 But a political party translates the many instances and particularities in a language that is general and wants to represent the general. No party claims to represent only the interests of those who belong to or side with it. Partisanship is an active manifestation of the general rather than an appropriation of the general by a particular; it is the opposite of patrimonialism. Hence Hegel could write that representation brings dissent into politics because in politicizing the social sphere it brings plurality and difference into the public, and Weber could accentuate that the political aspect of voting lies in the chance the citizens have to transcend their 37

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social being by their own doing, that is to say to act independently of their social identity and become themselves representatives of their political community.79 It might be useful to recall Tocqueville’s prescient diagnosis of the two forms of associations democratic citizens tend to create: civil associations that bind (and divide) individuals according to their specific and most of the time unidimensional interests or opinions; and party associations that bind (and divide) citizens along the lines of their evaluative interpretations of matters that are general, or of “equal importance for all parts of the country.” The former produce fragmentation “ad infinitum about questions of detail” that can hardly have a general breadth since the life of civil associations depends on the relative closure of their borders. The latter interrupts fragmentation, not, however, by imposing homogeneity or concealing difference (making the whole society in the image of one party), but by creating new forms of “difference” between citizens. Political partisanship both brings people together and separates them on issues that are general in their reach and implications.80 The function of parties goes well beyond the instrumental one of providing organization and resources for political personnel rotation and the peaceful resolution of succession claims. Their function is above all that of “integrating the multitude” by unifying people’s ideas and interests and of making the sovereign permanently present as an agent of extrastate influence and oversight.81 It goes beyond the scope of this work to analyze the role of the party form of participation in modern democracy—its transformation from an organization of notables to a mass and total institution unified by a religious kind of political creed, to a costly electoral machinery relying upon media, political analysts, and private money.82 The critical inquiry of the problems group leadership poses to democracy and the discussion of the Weberian argument that representative politics facilitates a proletarization of the rank-and-file by organized and organizational elite would require quite a different type of research. Suffice it to say that the declaration of the crisis of ideology and the ensuing cognitivist turn that discourse theory has impressed on democratic deliberation are largely responsible for contemporary political theory’s silence and myopia about the place of the party and partisanship in democratic politics.83 Yet the crisis of ideological parties Cold War–style has shown that pre-electoral fragmentation—candidates without parties—can be the source of even more endemic kinds of ideological radicalism rather than the sign of a more democratic and prejudice-free participation. Freed of old ideological identifications, electors may find themselves trapped by and within 38

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the extraordinary power of other kinds of potentates, such as ethnic tribes and religious communities, private media tycoons and communitarian affiliations that repel or deeply compromise, rather than aid, deliberation.84 Selecting candidates as single competitors without a party or political group affiliation cannot be deemed an ideal of democratic representation, though it may indeed become a “departure from the principles of representative government.”85 As a matter of fact, if election were truly a selection between and of single candidates—between and of individual names rather than political group names—representation would vanish because each candidate would run for him or herself alone and in fact become a party of his or her own interests.86 The legislative setting would be an aggregation of individual wills more or less like the assembly in a direct democracy, unable to make decisions through a large deliberative process and finally not representative, since only ideas and opinions (that is, judgment in the broader sense) can be politically represented, not individuals. For this reason also, representation in the legislative setting is not simply the outcome of elections. Better said, it is the outcome of elections insofar as elections occur within a political context that involves programs and ideas that are more or less organized and general, but certainly capable of attracting and unifying citizens’ interests and ideas (that is to say, their votes). To vote for Mr. Smith always entails voting also for what Mr. Smith says and believes, and thus inevitably for what we believe and stand for.87 Political representation testifies to the fact that although democracy can be explained in terms of rules of the game, citizens’ participation is not a neutral game but a concrete way of promoting views and identifying with those who support or make convincing claims to support them.88 This is why representation is “problematic” when it is analyzed in relation to democracy. It is problematic because it can never be corroborated by and rendered in terms of the representative actually knowing about what people want and because peoples’ expectations and their representatives’ achievements will never correspond exactly.89 While it defies cognitivism, democratic representation is contingent upon much more than simply electoral procedures. It requires robust local autonomy and freedom of speech and association as well as some basic equality of material conditions. As we shall see in chapter 3, it also demands an ethical culture of citizenship that enables both the represented and the representatives to see partisan relationships as not irreducibly antagonistic and their advocacy not as an unconditional promotion of sectarian privileges against the welfare of the whole.90 39

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Proportional Fairness and the Dual Nature of Equality Specificity and generality, partisanship and impartiality meet in democratic representative politics because although they are, and must be, identical as electors and in the formal weight of their vote, citizens do not vote as indistinct and neutral right holders, nor can their vote be, as we have seen, a direct rendition of their individual opinions. As a matter of fact, in a society in which citizens are free to express their ideas (and actually are required to express them about both lawmakers and sometimes laws), political representation becomes the special terrain in which individuals’ social and cultural specificity surfaces rather than congeals under the legal status of citizenship. A citizen when “he comes to vote does not put off from himself, like a suit of old clothes, his character, his wealth, his social influence, his devotion to political interests, and become a naked unit.”91 Applying the two kinds of equality practiced in Athens to representative democracy suggests that isonomia regulates the distribution of suffrage and is¯egoria the distribution of voice. The former must be blind and absolutely equal because “voting is an imposition of a will over a will.”92 But the latter must not be blind to differences because its domain is that of judgment and interpretation and its aim is to make the deliberative space as complex and as rich as society. Quite convincingly, early proponents of proportional representation made this their central argument against majoritarianism and argued that proportionality is the norm of fair representation.93 Employing Aristotle’s dual definition of equality, whereas election is a procedure that requires arithmetical equality (the right to vote), representation is a political process that operates in the domain of proportional equality because it is a means by which differences seek public visibility and advocacy. It is reasonable to say that any issue of “fair representation” is an issue that pertains to the dialectics between part and whole (minority/majority) or the relationship between arithmetical equality (one head/one vote) and proportional equality (all ideas should have a chance to be represented, not only those that get the majority of the votes). This is why although a normative theory of democracy does not specify any single system of representation it does give some clear indications about proportionality since it requires that fairness be defined in relation to the maxim of distributive justice (which is the realm of proportionality). It revives Aristotle’s idea that the basis of democracy “is that each citizen should be in a position of equality,” which means that the position of each citizen has to be considered.94 The normative 40

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distinctiveness of democracy is not that the majority—“a flock of sheep innocently nibbling the grass side by side”—rules, but that each citizen consciously shares in the life of the country. Democratic control must be vested in a collective body that ought ideally to profit from the voice of “every citizen.”95 So where universal suffrage guarantees that all citizens are treated indistinctively, proportional representation tries to ensure that their views are given an equal chance to be heard. The former must be faceless and blind to differences, the latter must acknowledge them. It is thus incorrect to posit a dualism between individualism (one head/one vote) and actually situated individuals (interest-group pluralism) and refer them to liberal and democratic representation respectively since democracy entails both. Indeed, in democratic representation two rights converge: the right to an equal voice and the equal right to be heard, or the electoral right and the right to be represented.96 As we shall see in the last chapter, when Condorcet proposed filling the national space with local assemblies where the citizens could exercise their citizenship rights, he was making two claims: first, that democracy requires participation by citizens as individuals, not en masse; and second, that participation is always locally specific and performed by individuals who are differently situated or have different ideas. This means that the citizen always brings her or his specificity into politics, and never acts as an abstract member of an abstract nation. The criterion of justice in representation is normative rather than conditional on the achievement of any specific outcome that the citizens may legitimately seek through it (i.e., reparation of past injustices such as discrimination and exclusion). It consists in the actual and concrete possibility that all citizens should be able to participate voluntarily as well as to be heard and to have effective advocates of their cause.97 It supports political minorities not because it favors them or compensates them for being in the minority but because it does not give the majority more than its numerical due. Thus justice in representation is proportional and not reparative because it is a claim of quantitative accuracy, and thus rigorously consistent with democracy. The achievement of reparative justice may or may not be the outcome of the citizens’ political presence. Yet whatever the outcome, it should certainly not be the reason that justifies fair as proportional representation. Even in the hypothetical case that no group of citizens suffers or has suffered discrimination, representation should still follow the norm of proportionality with the political opinions and partisan views the citizens develop and hold in society.98 This is the norm that provides for the democratic legitimacy of majority decision-making (which is not exclusively a democratic method 41

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although a method that implies equality of the decision-making actors). The norm is that all the citizens should have the chance to express their views in order to influence and eventually repeal existing laws or decisions. Moreover, by making their voices heard, minorities remind the majority that it is just one possible majority. Proportionality provides citizens with an equal opportunity to participate in the race, or at least to be represented and to check the majority. In fact, election is not just a race, but a way of participating in the creation of the representative body, the way citizens “send candidates to the assembly.”99 This nicely captures the distinction between “the right of representation” and “the right of decision” (judgment and the will) since the equal prospect of success should refer primarily to the possibility of acquiring representation. A representative assembly that functions as a mediating body requires proportionality in representation because it presumes that democracy is a system whose political process, as I shall explain in chapter 3, must be judged from the point of view of “all”—both the majority and the minority—and because it presumes that decisions are reached through a debate whose participants present the “whole” of “every opinion which exists in the constituencies” and which “obtains its fair share of voices.”100 Thus the issues of justice raised by representation are issues of is¯egoria, or the equal chance to have one’s voice heard or represented, not as a concession or compensation for past or present exclusions but as a means of effective participation here and now in the making of the legal order. This is why I suggest we call justice in representation democratic.101 Democratic representation is fair or just representation insofar as it involves issues of advocacy and representativity; issues of a meaningful presence, not simply presence alone, in the game of discord and agreement that is democracy. This entails that representation is not only not hostile to political equality; moreover, it reflects both public forms of equality: legal equality (equality before the law) and equality as the citizen’s right to support or oppose laws or government policies (largely in order to redress what they perceive to be real or potential inequalities and hence injustices). Since its inception in Athens (particularly the revolutionary movement of the Athenian demos in the age of Cleisthenes), democratic participation has attempted to balance these two equalities.102 Modern democracy has made this goal the controversial object of the complex relationship between representation and participation. Of the two equalities, the former belongs to the rule of law and the state of right (technically speaking); democracy does not have sole claim to it. Although it is legitimate to doubt that the rule of law can be maintained if the subjects of the law are 42

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not citizens, the guarantee of the rule of law is not necessarily contingent on the adoption of universal suffrage. Hobbes’ Leviathan, a decent authoritarian state in Rawls’ sense, or simply Montesquieu’s predemocratic “commercial republic,” can meet the requirement of equality before the law. Historically, this was the type of constitutional government that institutionalized representation and the theoretical framework that hosted the juridical and institutional conceptions of representation I sketched above. The other form of equality concerns the opportunity and the means citizens have to express their views in the public arena and be effectively heard.103 This equality is exquisitely political and democratic; in fact, it exists only in democracy. The best way to grasp its relevance is to describe it in the words of one of its earlier liberal critics: Guizot thought that representation should reflect the opinions “of those who are capable,” not “all individuals, merely because they exist.”104 Democratic representation reflects the opinions of all citizens “merely because” citizens exist. Almost all contemporary democratic constitutions and political practices, judicial and legislative, reflect these two perspectives on equality. Every constitution inscribes the legal equality of individuals and citizens regardless of gender, economic status, race, religious affiliation, or belief. Most constitutions also contain articles claiming to promote equality by removing obstacles that de facto impede or disfigure it.105 One possible interpretation of these two perspectives on equality is that democratic constitutions acknowledge the fact that, although formally equal, citizens are not, and perhaps will never be, actually equal. As such, they endorse a politics of antagonism over and for the realization of the democratic promises engrained in the constitution. In other words, “achieving membership within a political community is not necessarily the same thing as achieving equal membership.”106 As Condorcet (the first theorist to identify democracy with “equal liberty”) realized, constitutions of representative democracies do two things: they legislate (and thereby limit) political agency and government activity, and they define goals (enhancing and preserving equality) that stimulate political agency and participation. Furthermore, they use norms of legal equality to regulate political action. In that they inscribe politics as the terrain that protects and promotes equality, constitutions anticipate political conflict. A democratic constitution predefines the norms that regulate political action because it presumes political activism and contestation. The double register of equality—as a legal norm and a moral norm— distinguishes the democratic process of political representation and is 43

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the main reason why juridical and institutional theories do not apply to democracy. Democratic equality highlights the incompleteness of the classical free-mandate model that representative democracy has inherited from liberal representative government. Equality as legal status means that the representatives must represent the entire nation and that their will is not bound to instructions by their electors. So long as the demos was restricted to social equals (property owners, adult males, Christians), the free-mandate paradigm did not conflict with claims of representativity. In fact representativity was never an issue; when it became one it could legitimately be accused of promoting factionalism.107 As we shall see, Sieyes’ “nation” (like Madison’s and Burke’s) was just as homogeneous as Rousseau’s “people”; the representatives of the former were supposed to be just as blind to the interests and opinions of their electors as were the latter’s citizens to their private interests and opinions. In other words, all a homogeneous demos needs is legal equality if it is to be reconciled with formalistic types of representation.108 The moment democratic constitutions define equality as a goal, they admit inequalities as a permanent threat to be detected and judged, voiced and amended. This makes the legal ban on imperative mandate politically empty although legally necessary and in fact enforced in most constitutions (except for the United States).109 Indeed, in order for the citizens to enjoy an effective equal chance to influence the political life of their country they have to insist that their representatives listen to their (diverse and also conflicting) claims. So on the one hand, representatives are legally forbidden to become the agents of their constituency and are asked to rely only upon their reason to judge according to the general interest, rather than according to their electors’ interests alone. On the other hand, however, since citizens are socially not equal and culturally diverse or are patently unequal and seek equality through political action and the law, representatives cannot ignore their voices and claims. One kind of equality commands representatives to transcend their constituency; the other demands that they adhere to their claims.110

Advocacy The fact that equality as a moral value and project reveals concrete cases of discrimination and prompts citizens to demand to be placed on the political agenda shows how incorrect it is to think that inequality seeks representation. Inequality seeks advocacy in order to be rectified. This tells us why both descriptive and symbolic notions of representation 44

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are problematic if taken in isolation; why, in other words, the dualism between pure delegation and trusteeship is too abstract and too narrow.111 Representative democracy needs a conception of representation that gives constituents the power to participate in the selection of their representatives while leaving representatives a degree of independence from their constituents. It needs to leave room for autonomous activity on the part of both representatives and constituents while still ensuring some connection between their respective (autonomous yet interdependent) actions. The idea of representation as advocacy satisfies these demands. Although it implies that constituents choose their representatives on the basis of who will be the best advocates for the issues of greatest concern to them, representation as advocacy still allows them genuine choice in deciding the issues for which they need advocates. Similarly, in giving them this choice, it allows them greater control over their representatives than the traditional trustee view of representation. Moreover, it encourages deliberation within the legislature (encouraging representatives to evaluate the best strategy and act autonomously) and as an ongoing activity of reflection and judgment on the actual condition of constituents and the country as a whole. Finally, it defies the rationalistic and cognitivist assumption underlying some recent models of deliberative democracy and withstands the conventional critique of proportionality as a descriptive “mirror” that simply reproduces existing social segmentations.112 While capturing the complex character of representation—its commitment to as well as its detachment from a cause— the analogy between the advocate and the representative can be an interesting attempt to transcend the two extremes of partiality and an objectivist vision of the general interest that have been traversing modern representative democracy since its inception. Moreover, such an analogy helps to highlight the two main political functions of representation, as a means both for expressing individual opinions and choices and therefore exercising self-government and for resisting exclusion and therefore achieving security. As a point d’appui, representation as advocacy increases the citizens’ power to make their claims heard and, it is hoped, effectively answered because it encompasses two components: the representative’s “passionate” link to the electors’ cause and the representative’s autonomy of judgment. On the one hand, advocacy gives representatives firm convictions and thus nurtures a spirit of controversy (sympathy of ideas and views joins “friends” and “partisans” against their “opponents”). On the other hand, it steers partisan convictions down the path of deliberation 45

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and, ultimately, toward decision. Advocacy testifies to the structural tension of democratic deliberation: diverse (and seldom rival) interests, subjective visions, and aspirations compete in an open political space in order to reach a decision that is not supposed to serve partisan interests or put an end to deliberation. Electors do not seek an existential identification with their representatives; they seek an identity of ideals and projects because representation entails agency or power and its function is not merely symbolic.113 This is even more the case with citizens belonging to social and cultural minorities, who want an advocate, not a rubber stamp, given that their goal is resistance to the tendencies of the ruling power to silence their claims and violate equal consideration. This confirms the future-oriented nature of representation in an electoral system—and the unavoidably ideological character of political competition it implies and promotes. It also explains why it can never be a mere registration of a given social configuration. Its political and idealizing function frames the character of advocacy that entails the representatives’ need, on the one hand, to share the visions and ideals of their constituencies and, on the other, to enjoy a certain degree of autonomy because they are supposed to prefigure courses of action and project their deliberation in the future, which is, unavoidably, a dimension inhabited by things that have only a hypothetical or fictional nature.114 Yet the most interesting aspect of this political view of representation is that it conceives of deliberation in a broad sense and as taking place at both the legislative and the societal levels and, as such, creates the possibility that constituent and representative opinions can be reconnected between elections. In defining representatives as advocates, we have to see them not merely as partisans but as deliberators and democracy as an agonistic space. Even though representatives do not deliberate when acting as advocates (one could say that representatives are advocates and deliberators in turn when they act in the legislative assembly), nevertheless they consciously speak with deliberation in mind. Without deliberation (namely, arguments conceived in view of a decision), there would be no reason for advocacy. Indeed, advocacy is not blind partisanship; advocates are expected to be passionate and intelligent defenders. An advocate who is exclusively a partisan is not an advocate. And deliberators who are exclusively rationalizers are not deliberators—even if they produce rational justifications. A good representative democracy needs neither fanatical representatives nor rubber stamps nor philosopher-kings but, rather, deliberators who judge others’ causes and in turn plead causes “passionately” in accordance with the principles and procedures of democratic government. 46

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To anticipate the issue of the place of judgment in representative government which will be discussed in chapter 3, an “advocate” is not asked to be impartial like a judge, or to reason in solitude like a philosopher. Unlike a judge, advocates have ties to their “clients.” Their setting does not institutionalize impartiality, and in fact the actors who advocate their cause in the assembly are the same ones who pass judgment. Impartiality is at most a prescriptive maxim and a moral duty that depends mainly on the actors’ motivations and moral commitment to reciprocity.115 Moreover, the advocates’ job is not to enforce or apply the law but to define how the facts fit or contradict norms in order to propose new laws or change existing ones—that is to say, to decide whether the existing law conforms to principles that society shares or a “good” government should adopt. Unlike a philosopher (and like the politician), advocates have “to conform to the wishes of an electorate in order to win.” The philosopher owes a justification only to his principles. He is not seeking external consensus: “A philosophical justification cannot refer to the interests and passions of a particular group”; it “must be rational, or at least reasonable.” On the contrary, the relationship between candidate and electors does “not require the electors to consent to be represented by one who intends to govern them in opposition to their fundamental conviction.”116 Advocacy casts light on the nature of political deliberation. Far from transcending the specific situation of citizens, deliberative reasoning rests on the premise that specificity needs to be known and acknowledged. Therefore, “understanding” and “hearing” are the faculties at work in deliberative speech just as they are in forensic speech. They express the complex nature of the work of the representative, which should adhere to her cause but not be driven by it. Advocates believe in their cause but understand the reasoning of others to the point of being able to reconstruct it in their minds. They must “feel” the force of others’ arguments in order to envision the path toward the best possible outcome.117 This explains the competitive nature of democracy, which relies heavily on personal ability and character. So although every citizen can become a representative in theory and de jure, citizens select those whom they judge to be better advocates. They do not choose randomly or feel it is enough that the candidate belongs to their group (they, in fact, discriminate within their own group), although they do not want someone who shares ideas that are the opposite of theirs.118 The natural conclusion of the foregoing section would be that representation brings the views of the citizens to the assembly and the decisions of the assembly to the citizens, simultaneously separating 47

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and linking these two sources of action and opinions that make representative democracy such a unique form of government. For political representation to work, societal deliberation must take place alongside that of the legislature: advocacy in the representative assembly requires and stimulates advocacy in society. Political advocacy, which is implied in the dual conception of equality, suggests a partial resolution of the problem of allowing representatives to act autonomously while also maintaining some constituent control over them. The idea of representativity expresses this resolution, which is elastic and always incomplete. Representativity is entwined with advocacy because, like an advocate, the representative who believes in and shares the views of her constituents will presumably be more motivated and determined to advocate their cause in the assembly.119 Hence I argue that representativity and advocacy are the two irreducible features that characterize democratic representation. They are an expression, not a violation, of the democratic equality implied by electoral representation; they are based upon a type of equality that yields the democratic promise that we shall live in a legal and social order in which all of us are treated as equals although (and because) we are different, and in which we all have a chance to make our voices heard and heard effectively. In fact, in order to act as a member of the nation both the citizens and the representatives need to engage in fictional reasoning, as we shall see in chapter 3. This exemplifies the tension between commitment to the electors’ cause and a representative’s autonomous judgment, which stimulates advocacy. Indeed, democratic “advocacy” requires steadfast commitment to agreed-upon procedures; it does not favor outcomes that are “true” or “definitive” in their content but congruent with the shared principles of political equality presupposed by deliberation. The constitutive character of these principles limits advocacy, whose rationale is that no decision is sheltered from disagreement. Making the interpretation of the general interest mutable in order to make it more consistent with democratic principles binds it to a cooperative process of investigation and judgment that unifies the whole citizenry. Advocacy and representativity challenge both the juridical and institutional theories of representation and the relationship between sovereignty and representation that was codified in liberal predemocratic representative governments. This is why I have insisted that democratic equality has transformed the practice and the meaning of representation and that issues of justice in representation are issues of democratic equality.

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Representativity Seen through the lens of the relationship between state and society, representation oscillates between the two poles of either transcendence of social differences or adhesion to them.120 The juridical and institutional conceptions of representation gave birth to the former, the political conception to the latter. Let me clarify this extremely important point. A political as democratic conception of representation tends naturally toward the pole of adhesion rather than transcendence. Yet adhesion is a complex idea and can be interpreted in at least two distinct ways, depending on whether the adhesion of the representative to the represented is reflected or direct—that is, whether it is produced and mediated (through political language), on the one hand, or reproduced and unmediated (through presence or an existential sample), on the other. In the latter case, reference is explicitly made to a corporate or factional conception of representation insofar as it requires that the substance of representation match the specific identity of the represented with no political filtering or idealization. It is as though the citizens’ social identities (such as class, profession, and cultural and religious affiliations) exhaust their identities such that their political identity simply replicates their prepolitical identities; or as if citizens’ social identities defy political interpretation, an activity that implies a form of judgmental detachment from the empirically given or, as I would prefer to call it, an idealizing work of judgment.121 In that case, representation would preserve a kind of naturalness or irreducible social determinism that exists prior to political action. At best, political action could mirror but not interpret or change this naturalness; a “natural” (as prepolitical) identity can only mingle with other identities for strategic reasons of parliamentary alliance.122 This is the theoretical background of an apolitical view of adhesion (and representation), wherein the political arena resembles a container of countless substantial identities that do not communicate with one another—separate enclaves that strive for their specific goals at the expense of others and the whole, more or less like interests in the marketplace. Direct adhesion is usually studied in the classical terms of ancien r´egime estate representation; contemporary theories of group representation tend somehow to replicate this view of representativity.123 Reflective adhesion, though, exemplifies a thoroughly political creation of the relationship of representation that allows the citizens themselves and their representatives to interpret and idealize their social

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specificity. (The theoretical significance of this view will emerge better in chapter 3 when I discuss Kant’s notion of judgment as “productive” representation). Neither a dualism between inside and outside state’s institutions (as in the case of transcendence) nor an existential adhesion (as in the case of corporate or group representation), political representation emerges as a continuing and mediated relation between situated citizens and representatives. Of course, far from transcending the specific situation of citizens, deliberative political reasoning is based on the premise that specificity must be disclosed and acknowledged. Deliberative judgment, like forensic speech, activates the faculties of “understanding” and “seeing,” although, unlike the latter, it projects them in the temporal dimensions of the future, not the past. These faculties express the complex nature of the representative-advocate, who, as we just saw, should adhere to her cause but also be able to understand the reasoning of others and reconstruct the deliberative scenario in her mind. So I prefer the term representativity to adhesion (of the representative to apparently politically preexisting social segmentations). Representativity suggests a condition that lies in between transcendence and adhesion, and defines relationships of control (on the part of the represented) and responsibility (on the part of the representatives) that are eminently political and moral but not juridical and legal. The issue of a reflective adhesion of the representative to her constituency sheds some light on the limits or incompleteness of a reading of representation as aristocratic selection. I shall come back to this issue at the end of chapter 4. Here I need simply to argue that the political theory of representation (characterized by representativity and advocacy) implies that two evaluative criteria determine the choice of a candidate: the personal or unique characteristics of the candidate, and the characteristics that the candidate shares in common with the voters or that are representative of them. It is crucial to note that the latter makes the former meaningful since a candidate’s individual distinctiveness and “competence” is significant only within the communal distinctiveness of the constituency she represents.124 However distinctive and electable many candidates may be, we perceive a particular trait in the words and behavior of some or one of them that makes us sympathize with them and define our constituency through them or him. In this sense, representation is a mediating process that creates a community of ideas and political orientations that the contractual or juridical paradigm cannot explain. I propose the concept ideological as perspectival similarity to explain the medium that illuminates the specificity of the electoral race and 50

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makes voters seek out the best candidate. In a representative government, most political questions are determined by elected officials whose attitudes upon a variety of issues are public knowledge, while most of their constituents’ views remain anonymous and cannot be identified individually. Constituents are generally identified in terms of their representatives; they are identified by reflection. Hence, representativity is essential because it allows the citizens’ opinions to be identified and known. This explains why, when voters elect representatives, they tend not to elect candidates who differ from them in some important respects; why ideological cleavages are unavoidable in representative politics; and why the end of representation is not merely to designate representatives or mandataries (selecting neutrally competent agents) but to give parts a political individuality in the whole and in this way create the condition for political dialectics and friendly partisanship. It is certainly true that “we can only talk about representation where there is difference—and not an identity between the representative and the person represented.”125 Yet it is not the existential presence that should be our parameter of representative relation but presence through ideas. Representatives and represented are certainly not identical, but they can and actually should have some relevant similarity at the level of discourse and ideas, a similarity that they construct, transform, or interrupt. The complex interplay between the three theories of representation I sketched above in relation to the dialectics of unity/difference between representatives and represented should be clear by now. By analyzing the ideas of Rousseau, Sieyes, and Condorcet, I attempt to establish that reflective adhesion (perspectival similarity) is the most consistent expression of the dialogue between society and the state that democracy activates and requires. This dialogue is essential and unavoidable if legitimacy is to be conferred upon institutions—that is to say the legal means for the organization of authority—by democratically generated consent. The electoral investiture of lawmakers is essential but not sufficient because representation is a process that operates during the intraelection time, or beyond the moment in which the electoral decision occurs.126 Benjamin Constant depicted the two levels constituting representation in a way that is still extremely captivating and timely: representation of people’s opinion (the will regularly expressed in elections) and representation in the dur´ee, or the permanent attention and receptivity of the representatives to “those changes in public opinion that might [occur] between one election and the next.”127 The former defines the legal act of electoral authorization. The latter defines representation as reflective 51

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adhesion over time. It defines the permanence of the presence of the sovereign people in forms of judgment and political action that accompanies yet transcends the actual manifestation of the will.

Rethinking Popular Sovereignty The democratic transformation of constitutional representative government has changed sovereignty, as well as representation. Historically, representative government has been superimposed on a conception of democracy that predated both political representation and electoral selection. This conception was entrenched in a voluntaristic view of sovereignty that excluded a priori indirect forms of political action and identified political autonomy with immediacy—immediacy being the time dimension wherein the political event (decision) and the political actor (the people) mingle.128 The fact is that Rousseau’s paradigm leads to unintended consequences—namely, state-led professionalized politics and the impoverishment of political citizenship. As Hannah Arendt well understood, if the postulation is that “the people” are a singular and univocal entity (a “body”), then “the people” in a representative government will simply be a collection of individuals united by an artificial and potentially dreadful myth such as “the nation,” or by the economic logic of interest seeking promotion through the electoral process and parliamentary bargaining.129 As the history of nationalism proves, these two possibilities are not necessarily mutually exclusive. At any rate, using Rousseau’s paradigm of popular sovereignty to define democracy dooms the possibility of a democratic theory of representative government. Along with the obvious critiques of representation in the name of strong participatory democracy, the voluntaristic conception of sovereignty has also indirectly served the cause of the critics of the “ideology of democracy” and has strengthened their case for a pure procedural interpretation of democracy. I include within this rich and distinct category both the democratic elitists, who defend democratic minimalism and an electoral definition of democracy, and the democratic formalists, who argue for a definition of representative democracy that gives priority to objective (legal) norms over subjective (moral) ones and locates deliberation essentially within the parliamentary setting. Despite their significant differences, both types of proceduralism share the mythology of formalism and positivism, an approach that has utilized Rousseau’s

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classical view of sovereignty to disprove the very possibility of a democratic theory of representation.130 Elitist theorists have made Rousseau’s conception of sovereignty the norm of modern democracy discourse in order to trap democracy in the cul-de-sac dualism of either the “unrealistic” “classic doctrine” of the general will or the “realist” rendering of the will of the people as the factual will of an elected class. They claim that sovereignty is an ideological creation whose aim is to conceal the fact that political decisions are value relative anyway and that democracy is a method to select an elite, not an end in itself or a value.131 Critiques of representative government reflect the extraordinary impact of this Schumpeterian trend in the post–World War II renaissance of liberal democracy. The mixed-government model that elitist theorists adapted to contemporary society, Arendt wrote in On Revolution, is actually “an oligarchic form of government” based on the gratuitous assumption that the passion of the many not to be ruled is worse than that of the few to rule.132 Arendt thought that if politics was to be protected from attempts to identify it with state apparatuses (Hobbes) or economic instrumentality (liberalism and Marxism), it must be disassociated from sovereignty, a category she saw as irredeemably ontological and identical with the coercive power of the state, and moreover inherently inclined toward the functionalist view of politics implied by the Schumpeterian theory of representative government. The discourse of the exhaustion of the sovereign state as an effect of globalization has given new momentum to the antisovereignty argument. In recent years, both democratic theorists attempting to reconcile democracy with representation and radical theorists identifying democracy with movement-led multitudes and antirepresentation politics have proposed disassociating sovereignty from democratic theory. The most representative of the former group, Iris Marion Young, has argued that democratic representation can be explained without any reference to sovereignty. As a matter of fact, insofar as it amends politics of the metaphysical residue of the “will of the people,” representation matches the self-legitimizing and self-reflecting character of the democratic process. Authorization is the key to a democratic view of representation provided we do not reduce it to an isolated act (the election) as liberal-elitists or Schumpeterians do, but see it as “a relationship between the constituency and the representative” that creates us (our constituency) as a political unity. Representation has inspired the democratic turn that can be described as the process of authorization versus authorization as

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a simple act of decision. The result is that since “there is no constituency prior to the process of representation, no people who form an original unity they then delegate onto the derivative representative,” there is actually no such thing as popular sovereignty.133 Yet a democratic theory of lawmaking requires reference to popular sovereignty for the important reason that the democratic demands of representativity and advocacy risk fragmenting the political order if is not connected to a commonly shared criterion of political judgment.134 I argue that the idea that representation is a “defective substitute” for democracy is the product of a conception of sovereignty that is both context-specific and anachronistic. This idea, not popular sovereignty, is the source of the problem political theory faces when it links representation to democracy. It was coined before the development (and positive evaluation) of democracy and was intrinsically unequipped to accommodate itself to the political inclusion of the universality of citizenry in the political process. The deficiency of the modern conception of sovereignty is reflected in a definition of democracy as a practice that is essentially reduced to a simple act of decision (casting the ballot) and The Social Contract’s conventional image of citizens flying to assemblies (or the electoral booth) whether the actors are individuals or parties.135 This is the hidden rationale of the paradox that while political scientists and analysts continue to devise models of electoral behavior, representation is still conceived within the shadow of Rousseau’s argument that the people renounce their sovereignty when they elect representatives.136 Two centuries ago Constant explained why the identification of popular sovereignty with the will is inimical to representative democracy. In his attempt to counter the democrats, he co-opted Rousseau when he argued that elections are a strategy to defy democracy because they bring forth a government that can make legitimate laws without activating the sovereign. Thus if Rousseau’s paradigm becomes the foundation of democratic legitimacy, representative government cannot but be nonor undemocratic because the (sovereign) people makes “its appearance” only “at fixed and rare intervals” like a comet and “always only to renounce” itself.137 Rousseau’s decisionist sovereign can only be reconciled with delegates or representatives who are “commissaries” or “agents” or “proxies” since nobody can act entirely in its place without simultaneously replacing it and thereby annihilating the very relation of representation. The point is that a decisionist sovereign does not necessarily prefigure a participatory polity.

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The second form of proceduralism is more subtle and captivating. It was coined in the first half of the twentieth century along with, and to defend the democratic transformation of, continental constitutional states. Its main interpreter and advocate was Hans Kelsen, pioneer of the science of the juridical norm and, in his early career, an astute supporter of constitutional democracy against the assault on equal liberty coming from both new socioeconomic corporate interests and old authoritarian state apparatuses. Kelsen used the weapons of formalism and rationalism to counter those threats. In particular, he tried to disaggregate the principle of political equality from the doctrine of popular sovereignty, which he deemed a “political fiction,” a term that in his vocabulary denoted lack of normative clarity because of an unwarranted mix of “ought” and “is” assertions, descriptive and evaluative arguments.138 Kelsen saw representative democracy as an exemplary case of ideological construction when it was defined in relation to popular sovereignty, rather than simply as a functionalist strategy of governance. He countered the “ideology of democracy” with the clever strategy of limiting representation to the legal theory of contract, as Rousseau implicitly suggested, but reached the very different conclusion that representation was acceptable. Formally a violation of both the democratic norm (“equality of all citizens”) and the contractual norm (legal dependence of the elected upon the electors), representative government could be justified, Kelsen thought, by relying upon exogenous factors (functionalism and organizational division of labor) but not democratic principles: “the legislative power is better organized when the democratic principle, according to which the people should be the legislator, is not carried to extremes.”139 Revisiting Kelsen’s goal, we can derive an important lesson from this argument: representative democracy is an oxymoron whenever we extend the rules of juridical representation (the legal theory of contract) to political representation. Let us follow Kelsen’s reasoning. Kelsen synthesized the “true relationship of representation” in the following three norms, wherein the last two derive logically from the first one: (a) the representative must be appointed or elected by the represented (principle of autonomy); (b) the representative must be “legally obliged to execute the will of the represented” (rule of imperative mandate); and (c) the fulfillment of the representative’s obligation must be “legally guaranteed” (rule of recall). These three norms do not merely denote the democratic form of representative government. They also denote the institution of representation in the public sphere and

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mean that for a government to be democratic and representative at the same time it is not enough that elected officials during their tenure “reflect the will of the electorate” and that elections make them “responsible” to the electors. Indeed, these are simply “political” kinds of binding, and in this sense “fictional” and illusionary, not formally normative. Simply “political” binding (or representativity and advocacy) is fictional or ideological because it rests merely on the will or intention or the voluntary commitment of the actors, but is not legally enforceable. It is an imperfect binding like moral duty is imperfect in relation to legal obligation. Political binding can be subjected to ethical norms, like honesty or prudence on the side of the elected and disinterested participation or civic virtue on the side of the electors, which are however only mere instructions and a matter of good will. Hence Kelsen’s conclusion: “Legal independence of the elected from the electors is incompatible with legal representation,” the only legitimate, nonfictional form of representation. In sum, Rousseau was correct to argue that unless the sovereign employs delegates with instructions it is no longer sovereign. Representation sanctions the death of sovereignty. The dualism between “legal norm” and “political fiction” requires further investigation, if only because it is the key to the recovery of judgment in sovereignty theory. Kelsen used the expression “political fiction” for critical purposes, in order to denote any formula that cannot be translated into legal language. Political fictions refer to inferences of merit or demerit, opinions and ideologies—that is to say judgment of values; when used to describe reality (how things work), they are fatally destined to produce deceptive conclusions because they mystify or confuse the world of the “ought” with that of the “is.” According to Kelsen (and Habermas after him,) political fictions or value judgment designate ideology in Marx’s sense—the attempt either to give rational appearance to something that does not actually exist or to unmask a reality that is other than it appears.140 They presume the existence of an objective truth that is constitutively autonomous from the actors’ interpretation and opinion (the projection of desires or aversions coming from some subjective preference or interests); but they also presume a range of symbols and beliefs that political actors use to justify their choices to the public and that the public uses to (mis)judge public officials’ deeds and political agendas. Clearly, whether or not it is made in the name of the general will (Rousseau), the economic structure (Marx), or the legal norm (Kelsen), the anti-ideology claim points to a rationalistic (Platonist) conception of knowledge that is as hostile to representation as it is to politics. 56

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Rationalism is the subtext of an understanding of representative democracy as oxymoronic. “The function of this ideology [representative democracy] is to conceal the real situation, to maintain the illusion that the legislator is the people, in spite of the fact that, in reality, the function of the people—or, more correctly formulated, of the electorate—is limited to the creation of the legislative organ.”141 In other words, representation can be deemed a democratic institution only if the representative does not have a political function but is simply a delegate or a legal procurator, as Rousseau said. The ontology of the juridical norm— Kelsen’s belief in the legal dimension as the only “real” dimension—leads to the same conclusion as the ontology of presence and the sovereign will. Politics is the dimension that escapes both. The mythology of formalism and positivism in its elitist as well as its democratic version indicates that the root of the problem is the extension of the paradigm of the will to politics (the source of the juridical model of contract), not the idea of popular sovereignty per se and democracy. Representation as a contract (delegation) is in itself a denial of political representation. A democratic theory of representation cannot benefit from it, and in fact needs to emancipate itself from it. Representation opens up exceptionally interesting possibilities questioning the extension of the contract paradigm to politics.142 The place of contractarianism in the theory of political power exceeds the scope of this book. It is enough to say that, to put it schematically, whereas the contractual consensus argument can be an effective tool of persuasion in the constituting phase of the political order when the issue of legitimacy is at stake, it cannot help us to understand the political processes that occur in a constitutionalized polity. As Condorcet clarified, from a legal point of view only the elected members of the constitutional assembly are, and must be, pure delegates because making the constitution is the only true act of the sovereign will. Delegates in the constitutional assembly are not and cannot be representatives for some important reasons: first, because their role must be strictly confined within the limits of their specific function (framing the foundational laws); and second, because they cannot be (and are not) electorally accountable (they are not subject to reelection) if the people are to remain sovereign. The constitutional assembly is an una tantum assembly, a “one-shot deal.” Yet representation presumes continuity in the relationship between the representatives and the represented, or permanence over time as we have seen in our descriptions of representativity and advocacy. Unlike lawmakers, “the framers” are representatives only in a symbolic or ethical rather than a political sense. As pure delegates, they are 57

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representative in the sense that Rousseau’s Legislator was representative: they synthesize both the ethical tradition of their country and the general principles of justice and liberty that guide them in drafting the constitutional text for their country. In relation to the actual and contingent interests and partisan views that permeate the political arena, lawgivers are and must be neutral and disinterested, not representative. One might say that they deliberate f¨ur ewig.143 This allows citizens to use the outcome of their work (the constitution) as a general criterion to judge, evaluate, and interpret political issues and leaders, and to resolve disputes and solve problems. As I have tried to argue throughout this chapter, the representative is supposed to and is actually expected to have a double identity, one that is general and one that is partisan. Representation engenders a relation that is public and cannot be treated as contractual.144 Yet the fact that representation cannot have the same checks as a “contract” does not mean that its checks are confined to elections. The fact that the representative has not legally tied her will to the will of her electors does not mean that her will is sovereign and politically unchained—such that what we ordinarily call representative democracy is either an oxymoron or an elected aristocracy. Representative power is responsible power that allows for two interpretations of responsibility: in relation to the law (the representative must be an autonomous agent in order for her deeds to be subjected to the civil and criminal laws, like those of any other citizen); and in relation to the legitimate source of his public role (the representative is elected by the people according to the people’s will; he is not selected on the basis of merit or competence like a bureaucrat and according to neutrally evaluated requirements because his function is not administration but lawmaking). The power of the political representative is constitutively a dependent power whose performance demands that the actor be able to make autonomous choices in order to be judged by his voters. In sum, democratic theory requires that both the legislative function and representation be dependent upon “the will of the people.” It requires us to abandon the juridical and contractual logic of delegation and acknowledge representation as a political process. It presupposes that we emancipate politics from both the deterministic language of interests and the legalistic language of the juridical norm or the will. Representation is a political process first and foremost because the representatives vote on laws and are neither mere law redactors nor commissioners of the voters, and second because the relationship between representatives and represented does not end at the moment of electoral authorization. 58

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As Hannah Pitkin wrote so splendidly almost forty years ago, “Political representation does have something to do with people’s irrational beliefs and affective responses, and it is important to ask when people are satisfied by their representatives and under what circumstances they feel they are not being represented.”145 Thus, in reversing Kelsen’s logic, I would say that the point of departure for any democratic theory of representation needs to be precisely the fictional world of beliefs and judgment—a world that eludes proceduralist and legalistic language as well as true/false claims. Since politics cannot be entirely reduced to the creation of sanctioning norms (and state authority), so representation can be reduced neither to the formal client-agent relation nor to electoral authorization or an act of the will. A coda is needed at this point. Just because sovereignty (and democracy) should be seen in relation to the entire spectrum of political activities brought about by representation in its dynamic relation to society does not mean that the role of suffrage or the correct implementation of voting procedures should be ignored or are irrelevant. Authoritative procedures are substantial, not accessory, although most of the time we realize this when procedures are violated and manipulated. However, it should be clear that violations or manipulation of voting procedures signal a deeper crisis in the democratic process than a deficit of representativity. They must thus be treated as grave exceptions rather than ordinary issues in democratic theory. This is because the achievement of universal suffrage—which entails a combination of factors, namely one person/one vote, equal counting of votes, simultaneous national voting, and secrecy until the moment all ballot boxes have been closed—signals the beginning rather than the end of the history of democracy.146 The constellation of activities that create political representation signals instead that democracy is actively in place. This work focuses on that stage.

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Rousseau’s Unrepresentable Sovereign In his attack on the representative revolution, Robert Filmer raised a question that was to become central in the ensuing debate on political representation and can be used to introduce Rousseau’s doctrine of sovereignty. How, Filmer asked, can it be claimed that the people retain their “natural liberty” if they do not give the representatives “instructions or directions what to say or do in parliament”?1 For the sovereign to preserve its supreme power, delegates must not become representatives. Filmer was of course making a case for the sovereignty of the king. Yet his argument could be applied to a collective sovereign as well. “Sovereignty,” Rousseau wrote in 1762, “cannot be represented for the same reason that it cannot be alienated. It consists essentially in the general will, and the will cannot be represented; it is either itself or something else; no middle ground is possible. The deputies of the people, therefore, neither are nor can be its representatives; they are nothing other than its commissaries; they cannot conclude anything definitively.”2 In these few sentences Rousseau makes essentially two claims: popular sovereignty is an act of the will, and the will can be delegated but not represented because representation entails alienation. Rousseau confined representation rigorously to the bounds of a principal/agent relation and stripped the delegate of any political role. In legal usage, mandate is a fiduciary contract that allows the principal to temporarily grant an agent her power to take certain 60

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specified actions but does not delegate her will to make decisions. This was Rousseau’s model of “representation” in the legislative setting. It was consistent with a voluntarist politics and a juridical notion of sovereignty. Rousseau’s logic has mesmerized supporters of strong democracy as well as skeptics who doubt both the possibility of democratizing representative government and the feasibility of direct self-government. The question is, however, why Rousseau’s premises should go unchallenged and, moreover, whether their outcomes foster full participation and curtail the political influence of the delegates vis-`a-vis the sovereign. As I argue in this chapter, the most authoritative theorist of direct government and the founding father of participatory democracy denied that the delegates could have a legislative role, but he did not deny delegated politics. Indeed, despite the fact that he thought representative government violated popular sovereignty, he didn’t propose lottery or rotation (traditionally associated with democracy) and furthermore did not reject elections in the legislative sphere. Rousseau restated Montesquieu’s idea that lottery was democratic and election aristocratic and concluded with Aristotle that whereas all positions requiring only good sense and the basic sentiment of justice should be open to all citizens, positions requiring “special talents” should be filled by election or performed by the few.3 Hence Rousseau rejected both democracy and representation. Only direct ratification by the citizens distinguished his mixed-government republic from today’s representative government. His true counterproposal to representation was a delegated politics with direct (but silent) ratification, not a full-fledged participatory polis. The contemporary view that representative government is a mix of aristocracy and democratic authorization is the late child of Rousseau’s model. Elections can be a feature of both direct and indirect governments. The ancient Athenians and the Romans used elections, and Rousseau thought elections should be used in the republic to fill positions both in the legislative and the executive branches. Clearly, it is not election per se, but the statutory rendering of the function that elections enact that defines the character of representative government since it is the way representation is implemented that reveals what elections produce or, in other words, how sovereignty is conceived and what the sovereign’s responsibilities are. The difference between direct and represented government pertains to forms of delegated power rather than to whether government uses election or not. Rousseau’s model of political institutions is consistent with a delegated (as nondeliberative) democracy versus a representative (as 61

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deliberative) democracy. It is based on popular sovereignty as a unitary act of the will the citizens perform either by electing law-redactors or lawmakers with instructions or by voting on the laws directly. Delegation, unlike representation, means that the delegates discuss and deliberate but do not have the last word; they opine but do not want. As per Carl Schmitt’s reading of Rousseau, this is the only condition under which representation “may be regarded as a specifically democratic method.”4 The fact is (as Rousseau correctly argued) that this has nothing to do with political representation, though it is a delegate form of politics.

Either Delegates or Representatives Let first try to clarify how Rousseau conceived representation. This issue is a vexata quaestio in Rousseau scholarship, which has to come to terms with the fact that he violated the maxim of direct self-government a few years after he formulated it. As we know, he went from a radical denial of representation in Du contrat social (The Social Contract, 1762) to the endorsement of delegation in the Projet de constitution pour la Corse (Constitutional Project for Corsica, 1765) and the Consid´erations sur le gouvernement de Pologne (The Government of Poland, 1771). Most scholars have interpreted this as a pragmatic shift, not, however, as a principled rejection of the norm of direct participation. They have claimed that Rousseau “half-heartedly” transgressed his principles when he had to deal with actual states; that he accepted political representation “for practical reasons” but on the condition that it was instituted with an imperative mandate. Some scholars have gone further and argued that he eventually came to accept representation also as a matter of principle because what he called “elective aristocracy” was in fact “merely another name for parliamentary or representative government.” Finally, Rousseau’s oscillation between denial in theory and acceptance in practice has been taken as symptomatic of the contradiction bedeviling democracy itself: it is what The Social Contract says it is, but can at best be realized in the way The Government of Poland proposes. Representative institutions are realistically necessary but normatively weak and undemocratic. The paradox of Rousseau’s model is that it is the point where theorists of participatory democracy and theorists of electoral or elitist democracy converge.5 In the only book-length study of Rousseau’s conception of representation, Richard Fralin challenged the standard opinion that direct 62

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ratification means that Rousseau gave priority to participation. He argued that Rousseau was just as ambivalent about participation as he was about representation, and actually thought that direct and indirect participation should be complementary rather than mutually exclusive. This led him to suggest that the Poles should institutionalize “direct participation in the dietines,” or at the local level, and “representation in the diet,” or at the national level.6 Rousseau’s dual commitment testified to his lack of sympathy for assembled people and his lasting belief that a good republic should contain and limit it. It was not theoretical reasoning that convinced him to question the legitimacy of representative assemblies but Rousseau’s endorsement of Geneva’s political institutions as a model.7 And Geneva was a very moderate republic in which indirect democracy checked direct democracy. It seems to me that theoretical reasoning is essential in Rousseau’s approach and moreover that there is no discrepancy between theory and practice in his writings, for the simple reason that he drew a sharp distinction between delegates and representatives. If carefully interpreted, the title of chapter 15, book 3, of The Social Contract leaves no room for misinterpretation: “Deputies or Representatives,” where “or” is the key word, although a tricky one since it can suggest both equivalence and disjunction. However, the content of the chapter indicates that it is the latter that reflects Rousseau’s mind, not the former. To him delegation is legitimate insofar as and because it differs from representation. The title of the chapter should thus be read as saying either deputies or representatives. Rousseau’s words support this interpretation: “The deputies of the people, therefore, neither are nor can be its representatives; they are nothing other than its commissaries; they cannot conclude anything definitively.”8 It would thus be incorrect to say that Rousseau admitted representation for practical purposes but bound it to the people’s instructions. His analysis of representation was a chapter in his criticism of the theory of the alienation of sovereignty bequeathed to the moderns by the natural law tradition.9 In his vocabulary, like that of the theorists of absolute monarchy he relied upon, delegation was a form of direct decision by other means, while representation defined a reallocation of sovereignty. Like Jean Bodin and Robert Filmer, Rousseau thought that only the contract of alienation defined representation. This, not delegation, was sovereignty’s bˆete noire, the remnant of a patrimonial conception of the state the moderns had inherited from the Middle Ages and Hugo Grotius theorized in De jure belli ac pacis (The Law of War and Peace), which, reasoning from the logic of Roman private law, had argued that the people 63

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could alienate their freedom just as a person could legally alienate his property because sovereignty could be held “either with full property right ( jure pleno proprietas), or with usufruct only ( jus usufructario).”10 In Rousseau’s mind, representation would rekindle the logic of natural law because it claims, absurdly, that sovereignty can be alienated like any other property and that its alienation would not alter the identity of its owner. Since “popular sovereignty,” “the general will,” and “political freedom” are synonymous, it would be paradoxical to attribute to two different institutions—the sovereign and the representatives—the task of performing the same political activity while pretending they are different. The fact that delegates deliberate and ratify proves that a transfer of freedom and power has occurred such that the delegates are no longer delegates but sovereigns.11 Thus, when he wrote in The Social Contract that representation was a modern institution, Rousseau referred precisely to the feudal tradition and meant to say not that the ancients were unaware of the distinction between the actor and the function, but that the ancients did not apply the logic of res privata to res publica. His conviction that the Roman tribunes were “representatives” who did not “usurp the functions of the people” was consistent with his idea that the ancients understood “representation” correctly because they used it to institute the functions of government, not to alienate their sovereignty. They did not use it instead of popular assemblies.12 As for representation, Rousseau was a discontinuist much like Montesquieu, who also deemed it to be not an ancient institution but, like individual liberty, a creation of the Germans.13 However, whereas Montesquieu used the term “modernity” either descriptively or approvingly, Rousseau gave it essentially a negative connotation. The former saw representation as both modern and a sign of progress; the latter saw it as both modern and a sign of feudalism thus regression.14 It was part of the natural law tradition against which Rousseau opposed his theory of the social contract as an act of constitu¯ere versus alienare. With the pactum unionis that was also pactum subjectionis (because the community gave itself the power to make laws and subject all to them at the same time), individuals created their legal equality, a normative grammar that served as the model for and set the limits of all subsequent relations and contracts in public matters.15 Rousseau’s aim was not just to prove that representation could not be a norm of good government. Much more radically, he wanted to disprove that representation could be used as an expedient for the exercise of popular sovereignty in a large territory, since it contradicted the three fundamental requirements of popular sovereignty: unity, inclusion, 64

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and reciprocity. Indeed, the general will and the people were one and the same thing because they had “one and the same interest” and were born together; before the sovereign was constituted there was only a multitude of independent interest-bearers (prepolitical individuals) with no agreed-upon norms to regulate their interactions as free and equal beings.16 The practice of representation would artificially recreate a multitude of independent interest-bearers and make their private will the law of the state. Finally, according to Rousseau, an all-inclusive body politic was not enough to guarantee the convergence of utility and justice. Unlike Hobbes, he did not interpret the political pact as a way of artificially creating inequality of power in a condition (the natural one) of perfect equality. Since he assumed that individuals were naturally different from one another, his goal was to create a public space within which the relation between individuals could be one of reciprocity and equality: each must be (included as) both a sovereign and a subject in order for all to enjoy the same rights with no imbalance of power among them. This condition made it rational for individuals to enter the social contract.17 Representation would split the people into two classes—those who made and obeyed the laws and those who only obeyed—and thereby hinder equality: all the members would be equal as subject but not as sovereign. As a result, it could not ensure that some would not be penalized for not belonging to the “right” group and the legislative power not used to make decisions that would distribute costs and benefits unequally and discretionarily. Representation could not deliver what the social contract promised: that “justice and utility do not find themselves at odds with one another.” This damned it even as an expedient. That large and populous republics needed representation simply proved that republics had to be kept small in order not to force their citizens “to relegate to others” their “right of legislation” or sovereignty.18 Federalism and imperative mandate, not representation, were Rousseau’s pragmatic answers (or the expediencies) to the geopolitical order of the moderns. In conclusion, the essays on Corsica and Poland are not exceptions to the rule set up in The Social Contract, but a consistent implementation of the rule since delegation is not a kind of representation but a kind of direct government. Both the magistrates in Rousseau’s ideal well-ordered republic and the delegates in his constitutional designs belong to the same genre: that of a contract of commission. “The deputy, every time he opens his mouth in the Diet, every time he takes any action there of any kind, must see himself on the carpet before his constituents.”19 The delegates give the people their opinions on an issue, but opinions have 65

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no authoritative power of their own unless the people mark them with a “solemn and public declaration” of their will.20 We can see Rousseau’s logic in action in the debate on the constitutional form of the Parisian municipal government, which took place in the summer and fall 1792, when the idea and practice of representative democracy were born in France. The fundamental issue at stake was the relation between popular sovereignty (the citizens of Paris in this case) and the representative institutions of the city government. The greatest challenge to the Fauchetins—the party of Jacques-Pierre Brissot and le Marquis de Condorcet that sponsored representative democracy— came from the Cordeliers, the party that argued for the sovereignty of the districts against a representative Municipal Assembly. The Cordeliers thought that elections should institute delegates, not representatives. In language Marx would revive eighty years later during the Commune, they argued that if the districts (the people of Paris) were to retain their sovereign power, the representatives who sat in the Municipal Assembly could only be “administrators” or “delegates”—it was thus wrong to describe them as “representatives” because representation entailed a transfer of sovereignty, not delegation. The Cordeliers were adapting Rousseau’s model for the government of Poland to the government of Paris, correctly understanding it as nonrepresentative. “Our representatives are absolutely not, as in England, the sovereigns of the nation. . . . It is the title of Representatives of the Commune which causes the misunderstanding. . . . it seems to us that in this sense the word as stated is improper, and that they have cruelly stretched the meaning of words; henceforth, we believe no other words could serve us better than administrator.”21

Sovereign Unity: Symbiotic or Symbolic? Rousseau’s view of representation was consistent with the conception and practice of representation in mid-eighteenth-century Europe, which was corporate, not individual, directly associated with interests, not territoriality, and conceived within the scheme of a private contract.22 Its analysis is crucial not only as an enrichment of our knowledge of Rousseau’s thought and the historical evolution of representation, but moreover because it can cast some light on the contemporary debate concerning group representation. In prerevolutionary France, representation was pure delegation; it was meant to reproduce the ascriptive identities existing in the country in 66

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´ the counseling organ of the Etats G´en´eraux. Representatives were “commissionaires” in Rousseau’s sense. They had “one and the same interest” with the order they represented because they belonged to that order (in Schmitt’s language the delegates reaffirmed the unity of the corporate body and the equality of the equals). Identity of interests was prior to, and independent of, the delegates; it entailed a “symbiotic relationship” between them and their constituency, one that was neither fictional or ideological nor artificial.23 Like the relationship of the ambassador to his sovereign, the relation of the agents to both their estates and the sovereign was private in kind and direct. Delegation presumed an inegalitarian society made up of prepolitical communities that were unified under the monarch.24 The unity of the whole nation did not originate from it but was superimposed by and contained in the person of the sovereign. Predictably, the same issues that militated against representation also militated against elections and democracy because the symbiotic relation between the candidate and his community allowed for co-optation and selection at most, not competition. As a matter of fact, the delegates provided a service to the sovereign rather than exercised a power because they were not supposed to make decisions, for the simple reason that the parliament they sat in had no legislative power. By retaining the right of ratification while delegating deliberation, the monarch guaranteed the unity and authority of the law while he kept the society inherently segmented and divided. Representation was the bone of contention in the struggle between civil society and the state.25 It was first of all a strategy of power reconfiguration. The French monarchy’s shift from delegation to representation during the debates that accompanied the convocation of the ´ Etats G´en´eraux is an eloquent illustration of the relationship between the character of sovereignty and the normative statute of representation. Before 1789, the “parliaments were royal courts. They exercised final appellate jurisdiction in the king’s name,” but did not legislate.26 Even if they were summoned by the king to represent their communities, the representatives were legally speaking delegates of the sovereign king who bound their mandate. Thus the moment les corps claimed the authority to bind their representatives with instructions via elections they challenged the sovereign prerogatives head-on, and pushed the king into the awkward position of defending free mandate and the generality of the law, thus opposing the unity of the nation (himself) against “ses parties.”27 Representation as pure delegation with instructions was functional to state unity as long as the identity of the sovereign was unquestioned, 67

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physically visible, personified, and its legislative power undivided and absolute. Free mandate emerged as a function of state unity when the citizens (and the social interests they held) started claiming a share in state power and the body of the sovereign lost its visible and physical personification and became a collective construction, the result of a process of ideological unification rather than a given situated before delegation. The essential requirements of political representation (free mandate and appointment by election) were thus supposed to achieve the same goal as that of imperative mandate in Rousseau’s republic: the elimination of all intermediary actors between the sovereign and the subjects, of all authority besides the law. The problem is that imperative mandate could achieve that goal and express the “general interest” only if the society was rigorously homogenous, made up of individuals who shared identical economic interests, the same culture, religion, and ethical values. In order not to be an expression of an inherently inegalitarian and corporate society and precipitate the fragmentation of the body politic, imperative mandate would require a system of coercion strong and pervasive enough to preserve a strictly uniform society. Pre-Revolution estates had much in common with Rousseau’s sovereign: in both, the lack of inner pluralism made an intermediary space between the members and the delegates that could set the stage for the process of political unification (and political representation through elections) superfluous. Representation was superfluous in both cases since representation presumes not only an individualistic society but also a society that is pluralistic in opinions and interests, one that is neither a federation of homogeneous groups (as in the old regime) nor a homogeneous entity itself (as in Rousseau’s model). As Condorcet and Paine would subsequently clarify, it is quite inaccurate to see representation as a mere remedy for the problem of popular sovereignty in a large territory. In fact, representation allows popular sovereignty to exist and operate in a legal and social space comprised of individuals who have the same rights—rights that are not defined according to either their social status or where they live. The defense of representation and popular sovereignty went hand in hand and was deeply intertwined with the democratic transformation of society, the idea that all the citizens should somehow participate in the formation of the sovereign politics qua citizens, with their votes and their judgment.28 Within this all-inclusive, artificial, and egalitarian perspective, representation was needed to recreate the link between society and the state previously made directly by ascriptive communities, old estates, and the

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king. To paraphrase Raymond Carr´e de Malberg, while Rousseau saw the problem (the generality of the sovereign law) it was Edmund Burke (or Sieyes) who saw the solution (representation).29

Two Models of Unification The issue of the unity of the sovereign is fundamental in the investigation of the subterranean links between theories of sovereignty and models of representative government. An interesting way to approach it is by comparing the answers Montesquieu and Rousseau gave to the main political problem of their time: that of arresting the splintering effect of social interests and pluralism. The choice of Montesquieu is not arbitrary since he was the spokesman for the parliamentary theory of representation and in fact the first main theorist of representative government as a hybrid of democracy and aristocracy, hence the natural adversary of Rousseau’s design. From a historical point of view Montesquieu’s work cut across the social philosophy of the th`ese nobiliaire and of the physiocrats—the idea of a corporate society, on the one hand, and an interest-based justification of political institutions, on the other—the two main positions that led the representative transformation of the state in France. In Rousseau’s time, the author who threw Montesquieu’s view into the political debate ´ over the identity and function of the Etats G´en´eraux was d’Holbach. Like the physiocrats, the proponents of the thesis of the citoyen contributaire, d’Holbach devised a mix of liberal and republican virtues that linked individuals’ interest in private property, trade, and entrepreneurship to political rights and the creation of public interest.30 He reformulated The Spirit of the Laws’ scheme of a “moderate” regime, in which representation figured as a shield for social interests, as a source of information enabling the lawmakers to make good laws, and as a source of legislative expertise. However, d’Holbach grounded Montesquieu’s model on a view of representatives as agents of their constituents, not the general interest.31 In his eclectic and untenable solution, d’Holbach implicitly proposed an imperative mandate similar to Rousseau’s constitution for Poland, although he did not, like Rousseau, base it on an individualistic reinterpretation of political suffrage; rather, he related representation to orders or corporations—to interests rather than individuals. D’Holbach’s article embodied the central ambiguity of the physiocratic thesis, which embraced a commercialist and individualistic

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philosophy, on the one hand, and perpetuated the ancien r´egime schema of social and political estates, on the other.32 Until his Discours sur l’´economie politique (Discourse on Political Economy, 1755), Rousseau shared d’Holbach’s positions.33 A few months later, however, he took a quite radical stand, rejecting the position of his fellow Encyclopedist and radically disassociating the sovereign from representation. With this move, Rousseau set himself directly against Montesquieu’s parliamentarian legacy and reasserted Bodin’s absolutist legacy. Montesquieu’s strategy of combining the separation of powers with representation was the first conscious attempt to bridge the unity of state sovereignty and the plurality of an autonomous civil society. The purpose of his model of a moderate monarchy was to reassert the “indivisibility of the supreme power in the hand of the monarch, and the subordination of the ‘intermediary powers’.”34 In this Janus-faced context, representation needed free mandate to both guard the autonomy of social interests and make possible the reconstitution of the unity of the legal order. Montesquieu scholars disagree about whether he succeeded in combining Locke and Bodin, liberalism and state sovereignty.35 However, Montesquieu not only did not discard the principle of a unitary “source of all political and civil power” but moreover approached representation from the perspective of state unity functionality rather than competition between interests.36 Indeed, although he defended the “intermediary bodies,” he did not resort to imperative mandate, the most useful and cogent strategy to protect les corps, as we have seen above. Montesquieu’s defense of social pluralism did not mean to recognize the prerogative of the intermediary bodies against the state. It meant searching for a balanced solution that would guarantee civil liberty within and under the law of the state. This solution became canonical in the liberal theory of representative government and the true alternative to Rousseau’s model of sovereignty and delegation. Montesquieu’s justification of representation was functional (an expedient to cope with the incompetence of the general public) rather than simply material (an expedient to cope with the size of the state).37 Representation could solve the problem of making the laws general in a broad and varied social environment wherein political competence and interests were unevenly distributed. Representatives could legislate for the general interest in a way interest-holder individuals could not. As I shall explain in chapter 4, political inequality was not principled but functional; it rested on a basic legal equality and was an extension to politics of the practical logic of division of labor operating in commercial society.

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As we shall also see in chapter 4, after Montesquieu, this position was revived by theorists and political leaders who deemed representation necessary to don the mask of the general interest, which was only latent in society and at most an ideal aspiration. Representation served to replace the old hereditary elite with a new one and, more important, to keep the citizens out of political deliberation. It was a way to appoint magistrates, not institute political representation. Thus, an elected elite, not the people, would preserve the unity of the state over a society whose members were protected in their civil liberty (economic freedom and freedom of association) but did not enjoy the same political freedom as their representatives. Free mandate satisfied the requirements of unity, competence, and individual freedom but at the expense of political equality, representativity, and advocacy. The fracture between the inside and the outside of state institutions that characterizes electoral democracy echoes Montesquieu’s strategy of a balanced compromise between the sovereignty of the law (in the public sphere) and the sovereignty of interests (in the social sphere). Montesquieu’s model was the target of Rousseau’s switch from representation to delegation and moreover his revisiting of Bodin (and Hobbes). This countermove explains the originality of Rousseau’s use of the imperative mandate relative to its ancien r´egime advocates while confirming the fact that his main goal was to create a unified legal and political order within an individualistic and egalitarian society, rather than making room for participation.38 Rousseau defended delegation with instructions once he had introduced an innovation that turned the ancien r´egime model upside down. He applied pure delegation (Bodin’s solution) in an individualistic and atomistic context or a sovereign body preemptively purged of all intermediary sources of authority (Hobbes’ criterion).39 Only under these conditions would the imperative mandate not be a divisive tool and a way of preserving a social hierarchy of communitarian authorities and organic solidarities. In a body politic made of rigorously equal individual units, there may be two ways to protect the sovereign from the risk of fragmentation. The first way is epitomized by Hobbes: representation as authorization made una tantum by each individual simultaneously to state representatives (persona publica) who retain and preserve the unity of judgment and the will (deliberation and decision) on the condition that the subjects are kept out of politics and deprived of not only the will but also political judgment. The second way is epitomized by Rousseau: inclusion of the subjects within the sovereign politics but on the condition

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that judgment and the will be the separate provinces of two distinct groups, the magistrates (or delegates) and the people, respectively. The implication of this extremely important move is not hard to figured out: the identification of politics (the sovereign power) with the will makes representation either impossible or illegitimate. The problem is that the interpretation of the sovereign power as will power is not for the sake of democratic politics but to guarantee the unity of the coercive power of the state (the abolition of any authority between the law and the citizen), as Bodin had anticipated. A decisionist sovereign is as unfriendly to representation as it is to a robust view of participation.

The Sovereignty of the Will Rousseau transferred to the people the qualities modern theorists of monarchical absolutism had given to the king: the will as possession and as the mark of power; the will as physical presence in space; and the present as the time dimension of the will. And he transferred to the “agents” of the people all the qualities that those theorists had given to the “judges” and the “commoners” of the king: judgment and interpretation—or deliberation in the broader sense.40 Only the qualities associated with the will constituted political liberty (the liberty of the sovereign). Both Rousseau and the theorists of monarchical absolutism confined representation to delegation but also prefigured an essentially formalistic sovereignty and a minimalist kind of participation. The conceptual distinction between will and judgment—attributed to the legislative power and the government (executive and judging functions), respectively—has proceeded along with distinction of state functions. Historians of political ideas and institutions have located its origins in the Roman and medieval juristic tradition and its acme in modern theory of the sovereign territorial state.41 Thomas Aquinas devised quite a clear separation between promulgation and counseling (or interpretation) and ascribed the former to the legislator and the latter to ministers. The same distinction returned in Marsilius of Padua’s Defensor Pacis, which identified promulgation with the solemn ratification of the law by the “multitude,” the only legitimate sovereign, without even distinguishing between the directly assembled multitude and the assembly of the representatives of the multitude.42 Likewise, Jean Bodin and Robert Filmer strictly distinguished between the legislative act and the debate that preceded it. The former consisted de facto in the sovereign act of promulgation, an act that encouraged 72

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scholars to highlight the minimalist and formalist nature of modern absolutism.43 The dualism between sovereignty and representation was perfected in the age of absolutism, when the faculty of ratification was rigorously ascribed to the will of the king as the marker of authority, and the faculty of judgment to his ministers (judges and commoners).44 When, in fact, the meaning of the adjective “sovereign” changed from “superior” authority to “perfect” authority (plenitude potestatis), that is to say from a connotation that was relative to one that was beyond relation or absolute. When, finally, the sovereign gained complete power by endorsing a politics of equality (of the ruled) through the dismantling of the ladder of commands and the hierarchy of wills and responsibilities it implied. The will became the voice of the law, the undivided source and immediate act of that newly concentrated authority.45 The sovereign and its delegates respectively embodied two distinct faculties (the will and the judgment) that engendered two different kinds of participation (authoritative and auxiliary). In this respect, Rousseau was a follower of the monarchist Bodin, rather than the democratic (but not individualist) Marsilius of Padua. Bodin’s Six livres de la r´epublique (Six Books of the Republic, 1576), one of Rousseau’s seminal sources of inspiration, identified the supreme power of the state with the unitary source of legal obligation and located it in the “moral person” of the sovereign, be it individual or collective.46 This principle also applied to modern parliaments, which either exercised delegated power or were themselves sovereign. The former deliberated and discussed, made suggestions and drew up petitions, but did not ratify laws, a power reserved for the sovereign.47 Montesquieu, drawing on Bodin’s theory of sovereignty, would later argue that representative government was a form of aristocracy, not democracy, and Rousseau that it was not a legitimate government to begin with. Filmer, who utilized Bodin’s doctrine in his ideological defense of the English monarchy against the parliament’s claim for legislative power, adopted a rhetorical style that was even more reminiscent of The Social Contract. When “the king is in place,” wrote Filmer, all delegated powers “ceaseth.” When the “sovereign body” is assembled, says The Social Contract, “all the jurisdiction of the government ceases.”48 The need for the direct presence of the sovereign (spatial configuration) in the legislature was indicative at once of the sterility of judgment and its representability. The king had to retain his seat in the parliament, but not in the court, because the judge made decisions that, like any act of judgment, applied only to particular cases and in conformity to 73

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existing laws.49 Whereas the parliament was speechless without the king (and in fact was a private congregation summoned by the king at his pleasure and only when he needed it) the judge could make his judgment authoritative only without the king.50 Thus the maxim: sovereignty is the work of the will and delegated politics is the work of judgment; whereas ratification defined the form of participation proper to the former, deliberation defined the latter’s.51 The distinction between delegates who are and are not representatives is thus predicative of both the juridical relationship they institute and the kind of power they exercise. When Rousseau writes of the delegates who vote in the assembly that they are not really voting but opining (“ce n’est pas voter . . . c’est opiner”),52 he is saying two things: first, the delegates do not make authoritative decisions; and second, the delegates exercise only the faculty of judgment, not the will. Judgment, because it is parasitical on laws or rules it does not itself create, is a weak power; this makes it transferable without risking the violation of liberty and equality. Whenever they are given the power to make decisions, deputies are no longer deputies but representatives or, in Rousseau’s reasoning, sovereigns. Hence the norm: although judgment can be made “in the name of” (because in the absence of) the sovereign, the will cannot be declared “in the name of” (and in the absence of) the sovereign.53 This yields the juridical definition of political participation in its proper sense: only ratification requires direct presence by the sovereign. When the people replaced the king, the result was Rousseau’s theory of direct participation: “The people cannot be represented in the legislative power. But it can and should be represented in the executive power, which is merely force applied to the law.”54 Only the authority that makes decrees can be represented (the executive and the judiciary) without danger of “denuding” the sovereign. To sum up: sovereignty entailed possession, such that whether the monarch or the assembled people were the sovereign, their delegates could not be sovereignty’s “owners and possessors.” Sovereignty entailed physical presence and spatiality, so that the power to transform a proposal into a law required nondeferred action and it was the same thing as ratification (a simple yes/no decision), whereas the delegated power was to opine. Hence the maxim: Representation is a contract; like any contract, it can be either a contract of alienation or a contract of delegation or service; if the people are to retain their sovereignty, only the latter is admissible. For the republic to be legitimate, representation must be nonpolitical or pure delegation in the juridical sense. 74

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A Privatistic Model of Delegation Rousseau has been accused of being the theorist of totalitarian democracy and holding a panpolitical conception of society.55 Yet he gave the state a privatistic kind of foundation. Hegel was the first to point out this contradiction, explaining that if the national (as general) will was to be the “principle” of state authority, then it must first be distinguished from individual will and made into an absolute principle of union autonomous from and above individuals’ “capriciously given express consent.”56 It might seem paradoxical to argue that an author who so strictly gave priority to the public over the private modeled the public on norms regulating private relations. Yet Rousseau conceived delegation in a way that was essentially privatistic and yet consistent with his theory of political freedom. The reason for this lies in the principle that unifies his philosophy: the will as the organizing force that moved all the domains of life and moreover conflated the juridical and the political. Rousseau defined political sovereignty according to the coordinates of Cartesian metaphysics of the substance and its attributes: the will constituted the substantive attribute of the sovereign, which could not exist without it.57 Ontological reason and normative reason merged so that to possess a will was to exist and to be free. The adjective “political” applied both to power and freedom and coincided with the fact of the existence of the actor and the act of decision-making by the actor. This equation allowed Rousseau to use his argument against the patrimonial theory of the state as well as against representation, since both made the same “mistake”: both conceived sovereignty as an attribute that could be alienated and exist apart from the body (the substance) of the sovereign.58 This does not prevent the “master” from using the services of others. (Rousseau thought a master who wanted to do everything himself was tyrannical.) However, the master/servant relation (a scheme The Social Contract applies to delegation) is one of subordination rather than equality, which is why it is not political or creative in the sense of lawmaking we have just explained.59 Hence, there is no contradiction in treating delegation as a private relation. If we recall that Rousseau separated the sovereign and the government, the former legislating and the latter executing, we might say that from a legal point of view, he saw all the latter as services performed by dependent agents or servants. This is what distinguishes the position of the magistrate (and the delegate) from that of the citizen, who is never in a dependent relationship, either with his fellow citizens or with the state, even when he obeys the law, since all are 75

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equally subject to the laws they have made. But delegates are only and always dependent. Hence Rousseau was right to say that they do not act politically and have a private type of relationship to their sovereign just as if they were its servants. As he says in The Social Contract, “the person of the magistrate” has a will that can be called “corporate” and a will that can be called “general.” It is “general in relation to the government” but it is “particular in relation to the state.”60 Delegates are administrators, judges, experts, and wise leaders, but not political actors in the lawmaking sense Rousseau attributed to political action. This means that they cannot claim a share in decisions unless they simultaneously change their status and usurp the sovereign. A servant who decides in his master’s place ceases to be a servant and becomes master of his own activity. Liberty, sovereignty, the will, and autonomy are synonymous. Are they also synonymous with a highly participatory polity?

The Travel Agent and a Minimalist Participation It is a commonplace that Rousseau countered representation with direct participation. However, “participation” is a tricky word. It can be interpreted in a number of ways, and can be an object of both mystification and vilification. The more its meanings are expanded to include various degrees and forms of political activity and influence, the harder it is to give participation a juridical coefficient. Yet, if the point of participation is to make decisions authoritative, participation consists essentially in the act of approval or refusal, that is to say authorization. Rousseau might have had this difficulty in mind when he chose to give people’s participation a juridical meaning and identity, rather than a politically extended one. Like the signature on a document, sovereign power as will power means essentially authentication. To give a trivial example, the relationship between Rousseau’s sovereign and delegates can be compared to the relationship I have with my travel agent when I decide to take a vacation. I can give him a more or less detailed list of preferences and a certain amount of freedom to come up with some options. The only thing I need to do directly is decide to have a vacation. Without this fundamental decision the travel agent’s work would be meaningless. Yet it is not a kind of decision that requires my ongoing and active participation. It demands neither my competence nor my effort. My decision-making power is not curtailed because

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I don’t check the prices of airlines and hotels myself. Of course I enjoy positive liberty because in addition to the negative liberty to which my passport entitles me, I also have the means and opportunity to exercise my right to exit (money and free time). But the word “positive” doesn’t mean anything extraordinarily rich beyond the fact that I am the source of the decision and the ratifier of the option the travel agent proposes to me. The stock image of Rousseau as a proto–totalitarian democrat notwithstanding, Rousseau’s strict delegation should not be confused with any deeply politically active or mobilizing kind of sovereignty. His citizens do not need to do all the jobs entailed by the actualization of positive freedom themselves in order to enjoy positive freedom.61 The delegates are to the people like ambassadors to the state they represent. They do the “dirty” work their sovereign needs done in order for its plans to work, but lack formal power to make decisions in the sovereign’s place. However, they have significant discretion to explore the best means to achieve the sovereign’s chosen end and even to suggest the kind of end the sovereign might want to choose. As Carl J. Friedrich put it, an ambassador’s authority means that “his power also extends beyond the power to which he had claim as the representative of the particular government which sent him.”62 Ambassadors’ experience and knowledge enhance the inherent power of their role, so that depending on their personal abilities, they can accumulate much more authority and influence than elected representatives with free mandate, although de jure they have no power at all. Like them, Rousseau’s delegates have very substantial “power” although they hold it informally and behind closed doors. Unlike elected representatives, they have access to a range and degree of influence that cannot be easily assessed and formally limited, but which is in fact largely discretionary. This was why Immanuel Kant argued that a nonrepresentative form of government cannot be the norm because it cannot guarantee the government of laws, even when all the subjects want the laws.63 Although Rousseau rejected political representation, he did not replace it with an equal amount of direct politics by the sovereign people. The paradox of his model of an unrepresentable sovereignty is that delegated power plays the greatest role in the life of the state and is kept out of citizens’ sight and control. As Judith Shklar argued, the wise magistrates do almost all the work in his republic while the sovereign does very little.64 Citizens should be “content to give sanction to the laws and to decide as a body and upon the recommendation of their leaders”

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because they do not need to be particularly intelligent or well informed.65 They instinctively know the difference between right and wrong and can make good judgments in the general interest, but somebody has to call their attention to the need for a specific law or policy.66 It could even be said that Rousseau left it to the people to exercise sovereignty directly because sovereignty was not such a complex and difficult job. The only inviolable rule was that the citizens should vote on issues directly, and their votes were counted individually and equally. He did not say, however, that political freedom requires the assembled citizens to propose, discuss, and draft the laws. It certainly requires that they give the seal of legitimacy themselves. But it is preferable (and in fact a requirement of good government) that somebody else, not the citizens themselves, do the preparatory work that legislation entails.67 Rousseau’s view can be used as an argument a contrario that representation exists on the condition that it gives visibility to political deliberation which, thanks to this institution, becomes thoroughly public and exposed to the sight and judgment of all. This crucial aspect provides important evidence to my earlier suggestion that representation defies the dualism between the inside and outside of state institutions, between will and judgment, and extends publicity in the domain of state politics. Simply put, representation exists on the condition that the citizens are always present in some form and that their judgment, not only their will, is always influential. Second, it presumes an extended view of participation, one that also includes the work of surveillance and interference by the citizens with the work of the magistrates through words and deeds, written ideas and social actions by movements and political groups.68 As Condorcet well understood, judgment is an essential component of popular sovereignty in a representative democratic society, although unlike the will it is not formally authoritative. If judgment is to be included in the definition of sovereignty, participation must be redefined. The legalistic and formalistic view traditionally associated with sovereignty—either as direct ratification or electoral verdict—which has dominated the debate on representative government since its liberal inception, cannot comprehend the complexity of democratic participation and politics. The power of influence, contrary to that of the will, is exquisitely indirect and in need of being made public. As a result, it seems that the real choice is not between the existential presence of the sovereign and the absence of sovereignty, but between conceptions of popular sovereignty that are either purely juridical and private-like or broadly political and public.

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Imagination, Speech, and Deception Judgment and the will prefigure two different kinds of rationality, not simply two different faculties. While one resembles political wisdom and action in the classical sense, the other is abstract and cognitive reason in the modern sense or the act of discovering the general will on the specific occasion of a legislative proposal. The former is dialogical reason or a blend of experience, ethical maxims, eloquence, and prudence— it requires “talents and virtue,” something not all citizens have nor are required to have.69 The latter is purely analytical reason; it is cognitive rather than interpretative, assertive rather than hypothetical; it operates according to the principles of identity and noncontradiction and produces true/false propositions. It is universal in its minimalist requirements and all individuals have it in equal measure. Rousseau gave knowledge the character of volition, which knowledge does not have, while denying volition to deliberative reasoning (judgment) and wisdom, which in theory should be more capable of shaping the will. I would say that, when it came to sovereignty, he advanced an antihumanist conception of politics. Two conclusions can be inferred from this dichotomy. First, Rousseau ascribed an essentially impolitical (as formalistic) rationality to the sovereign people, while allowing only the few virtuous and wise magistrates to participate in the activity of politics in the broader and richer sense. Second, Rousseau understood that, when it comes to the will and judgment, only the latter can be represented or performed indirectly (he could thus say that the government—the executive and judicial branches—is the only legitimate representative of the sovereign). Hence, his strategy of directness can be interpreted as a strategy intended to strip the sovereign of deliberative judgment in order to make room for it at the delegated level—which played a central role in his well-ordered republic— rather than foster political participation. I would say that direct participation as direct ratification was meant to play a function of containment on participation, rather than augmentation. I will return to the character of rationality below. Here I shall try to explain what made Rousseau so suspicious when he came to deliberation; in other words, what made the modern conception of sovereignty antithetical to representative politics. Rousseau applied the Aristotelian principles of poetics to politics and defined politics in terms of immediacy or the unity of space, time, and the object.70 Yet he conjoined the two worlds Aristotle was careful to keep apart: the world of rhetoric and the world of poetics, or the art of

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balancing language and reason (persuasion) and the art of creating a new reality altogether (imagination). The art of persuasion is an art that creates or invents justifications (not, however, reality or the examples it uses as evidence), but the mimetic or poetic art is an art that creates a completely fictitious world of its own, or speaks “the truth by means of fiction, fable and tragic muthos.”71 In the latter case fiction is reality; it does not simply stand in for reality. Aristotle kept rhetoric only within politics. But Rousseau identified rhetoric and poetics and then expunged both of them from politics. The reasoning that brought Rousseau to guard us against the application of these two arts to politics is interesting: he identified the art of speech altogether as an art of substitution of imaginary presence for existential presence. The reason he rejected representation was the same as the reason he exiled speech from the assembly: in both cases prospective visions (imagination) would take the place of true/false inferences (cognition). This would infiltrate the realm of politics with deception or malicious fiction. In The Social Contract deception has multiple meanings. It may mean that the deliberative work of the magistrates is corrupted by the interference of their private interests in the functioning of government. It may also mean corruption of the general will itself or the “spirit” of legislation. The former may result in tyranny, but the latter results in the dissolution and death of the sovereign. In all cases, however, deception occurs when preferences (the private man) manipulate emotions at the expense of public reason; language and opinion, with the crucial help of reflection, are its vehicles. Corruption would reach a point of no return with representation since representation lives off speech and opinion and depends on a reflective form of rationality. Unlike the general will, which springs directly from the mind of the citizens, it would require a public forum of ideas, the disclosure of disagreement as a way of interpreting the general interest and thus pluralism in ideal visions, without which no electoral choice could actually be made and representation be meaningless. Rousseau was right to think that this is what representative politics does.72 Deliberation belongs to the genre of rhetoric as we learn from Aristotle, and both are arts open to the risk of manipulation because their performance depends too much on the moral character of the performer and too little on procedures and regulations. Rousseau shared this view, and by deliberation he means as we do the process that prepares for decision through debate, reflection, judgment, exchange of opinions, and provisional resolution. He thus concludes that these are complex tasks 80

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that can be performed only by the magistrates, who present the people with proposals that require only a final yes/no vote and who must not show disagreement in public or stimulate “sinister interpretation and venomous speeches.” As a matter of fact, the people cannot be presumed to be virtuous.73 The only requirement for membership in Rousseau’s demos is the individuals’ contractual free will, not virtue (which, if ever, comes as a result of living in a well-ordered republic and is not naturally possessed nor thus equally distributed). The legal or formal structure of the republic is normative, not perfectionist. Like a grammar, political institutions allow the citizens to interact justly and to treat one another as equal (be public actors), but their aim is not to change human nature.74 Any strategy to shape and influence people’s minds and emotions is external to political institutions. It is cultural and moral, not political sensu stricto. This might help to explain why in Rousseau’s republic, delegated functions were the hidden engine of the life of the state on the condition deliberation was not practiced by all, not held before all indiscriminately, and finally not coupled with decisions, why ratification was the only political act allowed to reach the public stage in Rousseau’s republic, and why his prudential requirements concerning the performance of deliberation would fatally be subverted by representation because when the vote is for persons rather than on issues the object of choice is almost entirely dependent on what the candidate says. It is thus not by chance that ratification is the only political event The Social Contract defines with scrupulous precision and regulates with detailed procedures. It is carefully clarified in its expression and results; it is not subject to equivocation and is visible to all. It is silent both in the sense that it terminates all discussion and that it comes in the wake of words; its perfection coincides with a decision whose justice is selfevident and requires no persuasion by speech (and is ideally unanimous). On the other hand, we are not told much about how the magistrates deliberate, and given the formalistic perspective within which Rousseau conceived sovereignty, we do not actually need to know much. When we turn to Condorcet’s plan of representative democracy, we will see a quite opposite attitude and a careful and precise definition and regulation of political deliberation. To be sure, in The Government of Poland, Rousseau acknowledged the importance of freedom of speech in the diet and in the dietines. But this was an unavoidable concession and a matter of prudence, rather than a principle. The norm was that the diet and the dietines ought not to “move in different directions” but have one view and one interest 81

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exactly like the law they produce. In theory, discussion should not be necessary. In reality, it was unavoidable.75 Like majority rule in relation to unanimity in decision, in deliberative settings freedom of speech is a strategy for coping with the citizenry’s weakness. The fact that it is necessary proves that the polis can never be entirely free of calculation and interests and is always vulnerable to decadence. The same can be said for deliberation, whose need is also an admission of citizens’ imperfection, not a good in itself. It is a necessary evil rather than a norm.76 Once Rousseau had acknowledged the need for it, he specified immediately that it had to be kept out of the public eye. Sight and sound never occur simultaneously in his republic (the sovereign is visible but silent; the magistrates speak and deliberate but are out of sight). Strong stimuli to imagination, their power should not be allowed to accumulate. Subjective senses, they recreate external reality in the mind (and feed the imagination) rather than merely serving as accurate witnesses to reason. An admirer of Spinoza’s Ethics, Rousseau was well aware and suspicious of the effects of sight and hearing on human imagination. In fact, he proposed instituting only those forms of public presence that nourished the correct (as civic) passions in citizens’ hearts.77 “In cultivating the art of convincing we lost the art of arousing,” and turned to “reasoned” discursive forms of interaction that persuade us without convincing.78 Imagination is a neutral faculty that can be made to serve diverse masters.79 Like Plato, Rousseau worried about “the presence of poets and dramatists” in the city and made sure that embellished and “fine speeches,” the most dangerous tools of persuasion, had no place in the education of children and citizens. Persuasion meant flattery and seduction and the violation of citizens’ autonomous reasoning.80 “Speechless” nondiscursive events like festivals, parades, or exemplary doing and the arithmetical harmony of music were the public forms of communication and action in Rousseau’s republic. They were cultural-political rather than institutional-political. Contrary to spectacles based on imitative sentiments like the theatrical game of characters and words (a representative assembly belongs to the theatrical genre), they stimulated a unidirectional current of ideas and emotions whose terminus was the individual mind. The unacceptable alternative was the endless circularity and perennial changeability of opinions, two necessary factors in representative politics. Public life should teach the kind of introspective reasoning (based on “the way things really are” rather than on “the opinions of other people”) that enable citizens to vote in the assembly.81

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But a people that votes as well as deliberates could lose its sense of mission as its will gets lost in the spiral of opinions and controversies, since ordinary citizens are not always virtuous and “not always enlightened.”82 Similarly, a people that witnesses the deliberative work of its delegates, that participates in the partisan world of social movements and party competition, might easily get confused by their rhetorical and strategic use of language and its reason deviate from the general will when asked to vote in the assembly.83 Since it foregrounds disagreement, the experience of deliberating together would make citizens suspect that the general interest is not categorically normative and in fact not univocal, but a res ficta like sovereignty itself. Rousseau did not repress disagreement, as we have seen, but looked for a safe place wherein to confine it. Controversies should be dealt with in camera by “virtuous” and “wise” leaders, not in the public assembly. Direct deliberation by the people or magistrates who publicly argue and discuss might easily induce the citizens to associate their sovereignty with simply a restless movement of ideas, rather than with definite authoritative decisions. Sovereignty would enter the dimension of temporality; it would be a process in relation to which “the will” would have no longer one location and one time. In fact, sovereignty would lose most of the sacredness it receives from the solemnity of ratification by the people’s direct presence. This would contravene the maxim that the laws of the republic should not be too easy to change or be changed too frequently because emendation interjects temporality into politics; it substitutes verisimilitude or doxa for truth, whose nature is, as Plato said, eternity as everlasting present.

The Deliberative Judgment of the Few People “always love what is good,” know instinctively the difference between right and wrong, and can make good judgments in the general interest, but somebody has to call to their attention the need for a specific law or policy because “it is in this judgment that they [the people] make mistakes.” Yet keeping the “heart” and the “brain” separate penalizes the former rather than the latter. In the end, the government is the “heart of the body politic” because it is its brain.84 Rousseau associates direct legislation with “wisely tempered” democracy, which means not only that the people cannot administer nor govern but also they cannot take any legislative initiative in the assembly.

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Legislative initiative would reflect the view of the proposing individual or groups and foster particular interests. To be used fairly, this power would require a moral rectitude and learning few citizens possess (nor does their citizenship status require them to possess it, as we have seen).85 A few years later, Condorcet would prove that the citizens’ right to legislative initiatives could be regulated and used as a negative check over the constituted power of the state. Contrary to the totalitarian image created by Cold War liberalism, Rousseau saw popular participation in state institutions as a strategy of containment (of government) rather than enhancement (of active citizenship). The censuring function entailed by the right of ratification gave the people enough power to stop magistrates’ proposals that contravened the general will. The minimalist form he conferred on popular participation was the logical result of his assumption that delegated politics (executive functions) would play a much more predominant role than direct politics anyway. Like Harrington, he thought that the people should have the power to protect themselves from the unavoidable influence of the elite: this was the task of direct ratification.86 Protection by containment involves the use of a different mental fac´ ulty than enhancement. When in Emile he writes that “reason alone is common to all,” Rousseau means natural reason, not reflective judgment, the latter of which is actually the acme of artificiality or human creation, the result of associational life and moral culture with all its inconveniences and richness. Judgment is reflection. It requires a sound use of language and moral sentiments along with a competent collection and selection of data and information, communication and comparison, good memory and the ability to juxtapose ideas and balance the pros and cons, and finally the subsuming of the particulars under the general maxim or norm. “Since all our errors arise in our judgment, it is clear, that had we no need for judgment, we should not need to learn.”87 Judgment can in theory be performed by all because everyone understands the difference between right and wrong; but its performance and outcome are unequal and reflect the different levels of proficiency human beings acquire as a result of socialization, learning processes, and the experiences they are exposed to. As Hobbes explained, judgment blends with passions and opinions to produce contentious outcomes: it is a divisive power that cannot be forced into one clear direction and is deeply marked by the moral character and competence of the person performing it.88 Ignorance is preferable to “absurd” and “mistaken” judgment, for “ignorance of causes, and of rules, does not set men so farre out of their way, as relying on false rules, and taking for causes 84

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of what they aspire to, those that are not so, but rather causes of the contrary.”89 The republic’s challenge is to teach people to reason correctly, the implicit admission being that although all must be included in the body politic as free and equal citizens, political “honors” or functions should not be distributed randomly. (Quite consistently, Rousseau preferred the aristocratic institution of election over the egalitarian methods of lottery and rotation.)90 The timing of politics and the making of the political agenda are the prerogatives of the few who do the work of interpretation and judge (interrogating the “spirit of the law”) when a law is “defective” and needs to be supplemented with a new authoritative (sovereign) decision. Often, in order to know the general will in “the situation where it is not expressed,” there is no need to assemble the people because there is no guarantee that the people’s decision “would be the expression of the general will.”91 Thus, judgment checks the will by selecting the options on which the will decides; and the will checks judgment by resolving through voting. Rome’s ruin, he repeated with James Harrington, could be attributed to the right any citizen had to propose laws “according to his fancy.”92 Rousseau designed political institutions with a view to minimizing the need to consult the people—to awaken them only when “it is a matter of a true act of sovereignty” or when the existing laws needed to be “supplemented” in the face of contingent events that could not be foreseen by the lawgiver.93 Like the counselor or the procurator with his client, the magistrates did whatever was necessary for the interest of and with the approval of the citizens, although without their direct participation and supervision. The leader was required not only to deliberate in secret, but also to disobey the will of the people in the case “the populace were willing to allow him to free himself from the yoke of the law.”94 Wisdom and virtue made the magistrates the guardian both of the general will and their own power, the paradox being that the “agents” were endowed with the power to check themselves and overrule the sovereign.95

Asking the Right Question As I suggested at the beginning of this chapter, one could argue that the obstacle of representation lies in sovereignty’s formalistic minimalism, in the fact that Rousseau’s sovereign act is too thin, not too tick. The general will is “the rule of right and wrong” (“la r`egle du juste et de l’injuste”) that regulates assemblies of citizens in the act of ratification.96 85

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The law itself is based on the very same premise that justifies the social contract: that individuals must be taken as they are, or as interest-bearers who look for a “common good,” which is “the point of agreement among all these [private] interests.”97 The general will is not supposed to annul those interests—which account for its raison d’ˆetre—but to solve their inevitable conflicts in a way just and suitable. Hence the problem of representation is not interests per se—and in fact his citizens are not devoid of interests or unfamiliar with utilitarian reasoning. In modern parlance, one might say that Rousseau saw in-group lobbying, not individual lobbying itself, as the problem: “Each individual should be heard, but corporate bodies should not be.”98 We can say that representation can be a problem because of its natural propensity to create and actively stimulate the aggregation or combination or alliance of individual interests; because it ends with the violation of justice as impartiality at the level of lawmaking. The interests of “partial societies” are more dangerous than individuals’ “particular interests” because they excuse and in fact prize partiality of judgment; not only are they sectarian but their sectarianism is transformed into an honorable issue and admired.99 Rousseau grasped with formidable lucidity what contemporary theorists of electoral democracy tend to undermine: that representation creates political parties and is never a direct individual-to-individual relationship between the elector and the candidate. Precisely because the common good is what all these particular interests have in common, the nature of the sovereign will must be “abstract and collective,” and in fact the paradigm of decision-making.100 Security follows from this. This paradigm is exemplified in the question the assembled citizens are supposed to ask themselves when they vote on a given proposal in the assembly: Does this proposal conform to the general will? The citizens must evaluate their interest from the point of view of their public selves, not their private selves. Reason is to opinion what truth is to doxa: autonomous and distinctively individual although general and abstract in character rather than partial and particularistic. The outcome is true interest versus apparent (i.e., false) interest. If in the assembly I decide to satisfy an interest that is mine but not mine alone, my decision is less favorable to me but not altogether unfavorable.101 Citizenship can be defined in terms of the convergence of the general and the particular; and the will is general insofar as it is a cognitive and an abstract criterion of justice, not a preferential judgment. With regard to the individual as a “public person,” the only consistent opinion is that enunciated by the general will, which is both normative and descriptive 86

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of the status of citizenship. In this sense, a good decision is also the true one—in fact it is good because it is true.102 Thus representation would either serve private interests or be useless. If it serves private interests it cannot produce decisions that are “useful” and “just” for all and every one because the characteristic of private interests is that they cannot be judged according to the principles of justice as impartiality. Anticipating Marx’s critique of justice discourse in capitalist society, Rousseau thought it makes no sense to judge private interests in terms of “injustice” or “error” because the “particular will” necessarily entails a preferential judgment that cannot but be particular.103 Particular interests or preferences cannot be other than partial. So the issue is to create a just society without having to negotiate or rely on particular interests. Rousseau’s proposal was to keep judgment based on economic and social interests out of the domain of public reason, while Marx’s was to eliminate the social cause of economic interest altogether and thus overcome the fictitious dichotomy between the man and the citizen. In both cases, however, one thing is absent: a society based on multiple parties and competition of interests, the very condition of representation. Particular interests cannot produce generality and impartiality (the law). The moment they do so, they are no longer particular or private, but general and public. Hence Rousseau’s conclusion that since representation is a private kind of principal/client relation (a contract), it is either useless (in the case the interest it represents is the same for all, represented and representatives) or dangerous (because it violates the principle of public reason and thus defies the general will entirely). Either the representative is a delegate with instructions and in this case does not make decisions, or it is the sovereign itself. The only time individuals are asked to listen to their preferences and to reason from the point of view of their personal interest is when they have to decide whether or not to enter the social contract. This makes sense because before the contract there is no actual “we” or criterion of public reason to refer to, but only a number of private “I’s” or interestbearers, and because the agreement to enter the contract must be unanimous and voluntary. Individuals must either “approve” or “reject” it. Ideas such as dissent and minority decision are incoherent since they simply entail the refusal to enter the pact. But once an individual has accepted that his behavior must be subjected to the same rules as everyone else’s, then everyone without exception must play by those rules, three in particular. First, citizens will be asked to decide on issues that pertain all, thus on public issues, not all issues; second, their vote should be based on a cognitive evaluation as to whether a proposal conforms 87

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to the general interest; and finally, they will make all decisions directly and according to majority rule.

Paradoxes of Minimalism Representation is meaningless for the same reason direct presence (participation) is minimalist and relevant for the same reason participation is not confined to the formal act of decision (ratification or election). Besides, if issues under the sovereign’s scrutiny presuppose a true/false inference, why should everyone’s presence be required? Since reason does not depend on numbers, everyone does not have to reason in order for the general will to be detected. “It should be seen from this that what makes the will general is not so much the number of votes as the common interest that unites them.”104 This means that a few people, or even one person as Kant pointed out, could detect the truth and give the right answer. Yet Rousseau argues with uncompromising strength that the condition of citizenship is that nobody substitutes for the citizen in the act of ratification. As we have seen above, the presence of each and all is required because it is a source of security: although even one ruler alone can in theory make laws that conform to the general will, human beings are not immune to passions and the temptation of giving their interest a privileged position. The inclusion of all in the sovereign power must be seen as an acknowledgment of human weakness and interpreted as a strategy of protection, not the fulfillment of participatory activism. There is, however, a second reason that might explain why representation would be fatal to the preservation of the political association. Indeed, the representatives are presumably elected by a constituency, and once they sit in the assembly they are expected to vote in accordance with the interests they were elected to represent. The true/false question would hold in relation to the electors the representative speaks for with the predictable consequence that representation would spawn a theoretically endless process of fragmentation of the body politic along the lines of particular and group interests (“`a force d’ˆetre bon s´enateur on devient enfin mauvais citoyen”).105 The only solution to this slippery slope effect would be to have the representatives represent the nation as a whole, thus bypassing delegation entirely and instituting free mandate— in sum, transferring sovereignty to the elected, who speak for a symbolic entity that does not coincide with the citizens.

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Edmund Burke is the best author to illustrate the paradox pointed out by Rousseau, and in fact comes closest to Rousseau’s idea that the general interest is not mechanically derivable from individual interests. Burke disassociated the representatives from their constituencies in order to preserve “the general interest,” or the generality and unity of the law (so that if they were “good senators,” they would not be too good, to paraphrase Rousseau). He envisaged a symbolic (ethical) nation above the concrete actual nation, and stated a moral relation among the two: the certainty that the symbolic nation would make the interest of the actual nation rest on a relation of trust (hence the relevance of the moral and civic character of the representatives). Reasoning from Rousseau’s perspective, one might say that the paradox of representation is that it fulfills the basic principle of the unity of the body politic on the condition the actual sovereign renounce defining the general will. This was, as we shall see in chapter 5, the kind of reasoning that Sieyes used to accuse Condorcet, in his attempt to combine representation and participation, of promoting federalism. Sieyes’ argument consisted in merging Rousseau’s goal (preservation of the unified will of the nation) and Burke’s means (free mandate as a means to attain the former): the sovereign retained its unitary identity but its site changed from the people to the parliament. The symbolic sovereign nation (the representatives) absorbed the attribute of presence that Rousseau had ascribed to the association of individual citizens. The third reason that explains the incompatibility of representation with the paradigm of sovereignty as the will is epistemological and pertains to the fact that the vote is supposed to reflect a cognitive, not an evaluative, judgment; truth, not opinion. The yes/no answer is supposed to be an answer to a true/false question and this is what makes representation illegitimate. On the other hand, if political decisions were expressions of or depended on opinions, then the question of who ratified the laws would not be so important because no opinion would enjoy the status of truth anyway and all laws would naturally be open to amendment and change. In order to legitimize political representation, sovereignty must be expanded beyond the ratifying will to include judgment. Quite consistently, Condorcet clarified that when we obey the laws passed in the representative assembly we do not obey the will of the representatives, but their opinion. This means two things. First, that by obeying those laws we actually obey the outcome of reasoned inferences or judgment made by the lawmakers according to the basic principles that define the premises of the political order (the declaration of rights)

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and the procedures agreed upon by all (the constitution), in which only the voice of the sovereign is actually contained. Second, that while we obey the laws passed by the majority of the representatives, we retain the power to criticize and, in the end, change them. In sum, we consent unanimously to the principles and procedures that inspire and form the laws, and we consent by majority to the specific content of the laws that are passed by the representative assembly. Hence, Condorcet could say that sovereignty in its juridical sense is located only in the constitution-making act and in the periodic revisions of the constitution, but not in elections. After the constitutional moment is (temporarily) concluded, sovereignty operates under a different guise or as a permanent exercise of political judgment by means of which we and our representatives try to solve the problems that arise day by day and make and change our guiding norms of action.106 Judgment cannot be expunged from the sovereign faculties and moreover is the faculty that makes it permanently active. I would thus say that representative and nonrepresentative democracy can be distinguished in terms of temporality rather than presence or absence of the sovereign will. Immediacy of the will versus process of opinion and judgment formation, not participation per se, is the strategic factor in Rousseau’s assembly. Immediacy does two things: it prevents individual interests from interfering with the general will, and it gives ratification the solemnity of a decision that is not supposed to be provisional or questionable. As we shall see, Condorcet wanted to change this condition when he insisted that democracy should be defined from the point of view of revocability (a status that pertains to all laws) and that what characterizes democracy is not immediacy (and in this sense directness) but dur´ee, not the final act of ratification (which is never final anyway) but the entire and complex process of deliberation that precedes and follows it and takes place both within and outside representative institutions. The immediacy feature is thus the cross issue, not sovereignty per se. It requires further exploration because it illuminates the kind of reason a decisionist sovereign is supposed to exercise.

Reflection and the Rule of Immediacy Rousseau understood that the citizen is a wholly artificial identity. This means that whereas individual good is grounded on the natural sentiment of self-love and the good of the human species on the natural sentiment of pity, the general good of the citizen and that of the body 90

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politic are artificial and rely only on manufactured sentiments. There is a need for “civic limits” because men are dual beings driven by amour de soi and amour propre, natural piety and selfishness. As already mentioned, Rousseau accepted the fact of man’s dual identity (“men as they are”) and did not expect the political order to eradicate individual interests or change human nature. An artificial order could be made to reduce the harmful aspects of human imperfection.107 Law is the power sovereignty has to create an order equivalent to the natural order. Its very artificiality, however, means that it has to be continually recreated in order to preserve its power. One way of putting this is that direct participation is important more for what it prevents than for what it produces. In this sense, “citizenship is a matter of self-repression” more than “self-expression.” A strategy of containment, political participation accustoms the citizens to redirect their amour propre “from pursuing personal exploitation to positive public enterprises.” Flying to the assembly is preventive and educational; on the one hand, it checks the (natural) temptation of the government to abuse its (very significant) power, and on the other, it is a “symbolic and ritualistic” reminder of the value of equality and an ongoing way to counter inequality.108 Citizens need psychological education because artificial reason (law) has great power (coercion) over behavior, yet not over emotions. Like sovereignty, reason is a force that creates authority yet cannot really inspire action, particularly in the many, but emotions can. Hence, citizens must act on their emotions if they are to obey freely rather than simply obey. Participation is supposed to shape emotions more than making politics. Its hegemonic and ethical function explains why Rousseau’s sovereignty lacks any institutional character (and, in this sense, any political life technically understood). The general will is politically irrelevant. It is primarily “a state of the mind” that induces the citizens to ask themselves the right question when they are summoned to ratify laws.109 This is the significance of Rousseau’s linkage between justice (correct reasoning) and instantaneous decision (good laws) or the immediacy of the will. It is easier to act in a disinterested manner when a decision has to be made immediately. But calculation and reflection need time. Hence, the quicker the decision the harder it is to calculate.110 When lovers deliberate, Corneille wrote, love is no longer the master. Time favors reflective reasoning (judgment in Kant’s sense) but speed is an aid to emotions. Rousseau also believed it aided justice and decisions inspired by the general will. As one reads in Balzac’s The Country Doctor, an assembly that deliberates and discusses when the nation is in danger 91

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looks “ridiculous.”111 Does this mean that the general interest is a passion and, like any other passion, is stronger when it is instantaneous? Yet Rousseau describes the general will as dispassionate public reason. But what kind of rationality does he have in mind? An aid to answering this question is contained in the second discourse, where Rousseau analyzes natural and social sentiments and compares them respectively to reason and reflection. The former defines men as they are naturally while the latter defines men as they are socially (not politically). Although it is an emotion, pity, like self-love, is not irrational. It is a natural sentiment endowed with an inner rationality. It is “the pure movement of nature prior to all reflection . . . a natural sentiment which, by moderating in each individual the activity of the love of oneself, contributes to the mutual preservation of the entire species.”112 It is an expression of the rationality of the natural order insofar as it operates for the preservation—thus the good—of the entire species, hence also the individual. This is also the normative logic of the general will in relation to the body politic and its citizens. Although artificial like reflection, the general will’s model is tailored not on reflection (which is reason as calculation and pro and con evaluation) but on natural rationality and sentiment. The general will is artificial but partakes of the rationality of the natural order; it is instantaneous rationality. Rousseau devised two notions of artificiality: one he associated with disorder (the social man) and one with order (the political man). “Pity is what, in the state of nature, takes the place of laws, mores, and virtue, and with the advantage that no one is tempted to disobey its sweet voice.” Artificial reasoning as reflection (which he identifies with pondering and calculation) interrupts the immediacy of natural sentiments. It exposes individuals to the temptation of listening to their artificial (social) passions first and makes them see themselves in egocentric isolation, separate rather than merely distinct and different from others. In this sense, pity is more rational than reflection because it points to true utility, which somehow escapes our calculation of what we think convenient for us, but is more consistent with what we really need. “It is therefore quite certain that pity is a natural sentiment which, by moderating in each individual the activity of the love of oneself, contributes to the mutual preservation of the entire species.”113 Pity is the synthesis of all the qualities that pertain to the preservation of the individual life. It is rational in the sense that a natural “instinct” is rational, or not subject to error because not an issue of judgment. (We judge on things that are uncertain and not immediately clear to our rationality; we judge and deliberate, Aristotle said, on things that escape true/false 92

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reasoning or immediate sentiment.) Pity is the mother of political virtue because while it seems to ask us to sacrifice our individual well-being, it actually points to our basic and authentic well-being; “from this quality [pity] alone flow all the social virtues. . . . In fact, what are generosity, mercy, and humanity, if not pity applied to the weak, to the guilty, or to the human species in general.”114 This natural force that commands humans to seek their individual good through rather than against the good of the species or the community is rational and original, not the result of “disputes” and discussion. On the contrary, “reason” as reflection is mediated and derivative; it needs pondering and consulting, calculating and discussing, exchange of information and opinion. It thus can be irrational (going against the rational order the law is intended to inscribe) or err in that, for instance, it can persuade the individual that to pursue his own good he has to go against the others. “Reason is what engenders egocentrism, and reflection strengthens it. Reason is what turns man in upon himself. Reason is what separates him from all that troubles him and afflicts him. Philosophy is what isolates him and what moves him to say in secret, at the sight of a suffering man, ‘Perish if you will; I am safe and sound.’”115 Reason turns us to amour de soi; reflection turns us to amour propre. The implication is that this instrumental and egocentric rationality can be blindly irrational and in fact inimical to the very individual interest because if everybody were to think and act only as it commands, all would perish.116 The identity of justice, truth, and natural reason (or sentiment) means that time works against them and favors reflection. As one reads at the beginning of The Social Contract, the political body is the only place where interest and utility can be fulfilled “together” and be reconciled. This self-evident truth comes to all of us naturally as the voice of natural reason or sentiment. The correctness of immediacy can be preserved by getting the citizens in the habit of asking themselves the right question time and again. Delaying the decision and opening up the floor to discussion make room for pondering and reflection and weakens the instantaneous force of “generosity, humanity, and mercy.” Useful for formulating proposals and preparing for decisions, reflection requires people who are well educated in the political sentiments. The nature of justice and the general will differs from it in that they do not come from a trial-and-error use of rationality. They are prior rather than derivative. Their immediacy and self-evident status explains Rousseau’s conviction that sovereignty can only be self-representative (“the sovereign, which is only a collective being, cannot be represented by anything but itself”) and its language 93

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an act of disclosing or discovering that is only effective and alive to the extent that our inherent sense of justice and rationality can speak freely and unreflectively.117 Since it cannot be represented by an actor that is not itself general, it is not quantity—the number of votes—that makes it: “what makes the public will general is not the quantity of voters [that support it] but the common interest that unifies them.”118 This explains the irrelevance of the issue of suffrage in The Social Contract as well as Rousseau’s argument against universal suffrage in the proposed reforms for the constitution of Poland.119 Numbers do not create reason any more they create the general will; the meaning of participation in the legislature is mainly symbolic and educational. Rousseau’s general will is indifferent (and even hostile) to the right to suffrage because its source is the radical transcendence of the specificity of the individual will, which is central to any notion of right, particularly the right to vote. As we shall see with Condorcet, the translation of sovereignty into the language of right was crucial in the reformulation of both democracy and representation. But Rousseau’s general will is conceived in direct opposition to the will of single individuals, and rights, because it is not supposed to be deliberative or derivative. It denies that which is the common root of both voting and representation.120

The Time and Space of Politics and the Paradox of a Punctuated Freedom The main obstacle to political representation is sovereignty’s punctuated identity, the narrowing of collective action to the act of voluntary consent. Sovereignty as the will or decision and the formalistic conception of sovereignty are intertwined trends. They are the main impediment to a democratic understanding of representation as a political process that necessarily involves sovereign people’s indirect presence. Like the reflected light of the moon that shines only when the sun is not in the sky, judgment is not an autonomous power; it needs always to refer to a principle or general criterion it does not create. In this sense, Aristotle wrote that judgment’s time dimension is either the past (justice) or the future (deliberation) but never the present. The present is the time dimension of the will. “Sovereign is the absolute and perpetual power of a commonwealth.”121 Whereas perpetuity, as I have explained at the beginning of this chapter, is the everlasting present, not duration; it is the actual effectiveness of the command: the laws are sovereign today because they impose obedience today, not because they did so yesterday. 94

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In terms of its outward relations, sovereignty enjoys the same kind of freedom that Hobbes describes in chapter 21 of the Leviathan: freedom as absence of “externall Impediments of motion.”122 The same was Rousseau’s rendering: “Each act of sovereignty like each moment of its dur´ee is absolute, independent from the act that preceded it; it is never the case that the sovereign acts because it so wanted; it acts because it so wants.”123 The temporal dimension of politics as decision (the “now”) defines the spatial dimension of the will (the “here”). Neither the future (representation) nor the past (constitution) belongs to political freedom as neither belongs to the will. Immediacy and presence unify Rousseau’s theory of political institutions and make his rejection of representation radical and thoroughly consistent with his rejection of constitutional binding. Legislation binds “all the subjects to the sovereign,” but cannot “obligate the sovereign to itself”; “it is contrary to the nature of the body politic that the sovereign impose upon itself a law it could not break. . . . Whence it is apparent that there neither is nor can be any type of fundamental law that is obligatory for the people as a body, not even the social contract.”124 Each legislative act is unique and absolute in itself and in this sense always foundational. Every time the people ratify a law they are both reaffirming and reconstituting their sovereignty: “Today’s laws must embody not the general will of yesterday but that of today.”125 The equation of freedom, the will, and sovereignty is the subtext of “the dualistic conception of political life” that shapes the liberal theory of representative government.126 Whether criticized or endorsed, this conception assumes that constitutional democracy, like representative democracy, is “a marriage of opposites, an oxymoron.”127 Sheldon Wolin is perhaps the most authoritative theorist of the antiestablishment side of the dualistic conception of politics—of the view according to which representative democracy is inherently contradictory since it engrafts elitism within democracy and makes democratic agency a procedural issue wherein the living power of people’s action is erased and politics turned into policy.128 Yet it is more suitable to my argument that I look at the implications of the dualistic conception of political life in the works of the supporters of representative government and the procedural system of strategic deliberation. Jon Elster’s distinction between foundational and ordinary politics—between a major freedom and a minor freedom—is an interesting example of the migration of Rousseau’s decisionist philosophy to the liberal camp. “Only the constituent assembly really is a political actor, in the strong sense of la politique politisante; all later generations are restricted to la 95

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politique politis´ee, or the day-to-day enactment of the ground rules.”129 Political autonomy (or democracy) is made into presentism, with the predictable and paradoxical conclusion that it creates a free political order it cannot itself preserve unless political authorship in the “strong sense” is circumscribed (in time) and contained (in distribution). The original assembly, Elster writes, reflects the “exceptional and charismatic character of the group” of people who constitute it. Yet those circumstances are historically exceptional and should remain so if individual liberty is to last.130 Later generations must accept that the “constituent assembly has a unique and privileged character, not by right but by historical accident.”131 Political action in the “strong sense” (in Rousseau’s sense) must be relegated to the past. The same logic applies to ordinary politics: by instituting representation, the citizens decide that only a few among them are going to do politics in the “strong sense,” or deliberate and vote on public matters directly. In sum, democracy as politics in the “strong sense” is a very rare occurrence, which means that constitutional representative governments are not democratic or, said differently, are only discretely democratic. The tradeoff is between political freedom and private or individual freedom. In this view, as in Rousseau’s, the will defines both freedom and legitimacy. To paraphrase Hannah Arendt, political action is here identified with creation ex nihilo as opposed to construction ab imis and is made to coincide with the act of erasing memory and exiling promises from politics, the past (tradition) and the future (prospective destiny).132 Politics in the “strong sense” (the only true politics) is only constitution-making as a unique event: what remains after it is the prosaic world of bargaining and policy-making, not politics in the noble or complete sense. Constitutionalized representative government is necessary, although not properly the home of political liberty. The choice between permanent revolution or electoral democracy is the inevitable consequence of an ideological perspective that applies the logic of negative freedom to political liberty, that sees the law as a negation of freedom and freedom as prepolitical condition. As far as representative government is concerned, the side-effect of this approach consists in identifying it with an authorized aristocracy and narrowing the democratic moment to electoral participation. As far as democratic theory is concerned, the side-effect is reducing it to an analysis of the behavior of deliberators and electorate.133 The rational choice turn in contemporary political theory is consistent with this view of representative government as a pragmatic second best, and the perception of ordinary politics as a prosaic negotiation among preferences that can be aggre96

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gated if and when translated into votes. Once politics in the “strong sense” is gone, we are left with a realistic and disenchanted world of compromises that cannot be ennobled in any way. Applied to representative government the word “democracy” is thus either imprecise or fictional or an ideological invention to mask the interests of elites competing for power. Although reminiscent of Constant’s two liberties, the dualistic conception of politics is the product of Rousseau’s theory of freedom because it does not say that the moderns cannot have politics in the “strong sense,” but that in modern representative government only some can do politics in the “strong sense.” The paradox of this reading is that it endorses Rousseau’s view of the “political actor” while ensuring that only a few will be “active,” although this restriction is declared to be “not by right” but either by historical contingency (constitutional moments) or by a consensus on the expedient division of labor among “operations ´ diverses” (representation).134 The main problem with the politics of the will as politics of unconstrained creation ex nihilo is that it assumes constitution-making as an act of freedom renunciation rather than of freedom constitution or the institution of the space and time of politics. I will return to this issue when I analyze Condorcet’s attempt to reverse this logic—which is fatal for representative democracy. Here I would like to stress the Rousseauian affiliation of the liberal theory of representative government, which implies— although it does not explicitly acknowledge—that freedom exists only before the enactment of law, to paraphrase St. Paul and the authoritative political tradition he initiated. The paradox of this view (whose “democratic” rendering is direct popular sovereignty) is that it grounds politics in an exquisite non- or antipolitical act of unbounded will or liberty. It is paradoxical in that it makes politics so absolute as to make it inactive. But as Arendt has pointed out, freedom in politics is related to action and the conditions of action; hence its nature is structurally bounded and situated, never absolute and ex lege, not even in the constituting event, which is never ex nihilo, but in fact the theater of a complex constellation of activities that comprises among other things recollection (reflection on the past), interpretation of other experiences (including mimesis), and compromise.135 Conceived within an absolutist view of politics, democracy cannot escape the trap of either betraying itself (self-binding) or remaining in the state of eternal beginning (anarchy or permanent revolution). A self-binding freedom would be a paradox even when a prudent expedient devised by the citizens themselves. As Rousseau pointed out, we 97

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cannot voluntarily enslave ourselves to a past agreement (constitution) or somebody’s promises (representation) and then fantasize we are free because we have consented to be bound. With regard to election-based representation, the theorists (be they radical or liberal) of the paradox argument would agree with what Rousseau wrote in the Discourse on Inequality: “All run to their chains, thinking to preserve their liberty.”136 If freedom exists only in the moment the sovereign will wants, then it cannot tolerate delayed narrative. Constitution and representation violate this principle because they prefigure politics as a political process rather than a simple act of decision. Rousseau thought it was simply wrong to say that constitution and representation mean the will (legitimacy) stands for something that existed previously but is not present now. In fact, constitution and representation stand for something that does not exist any longer or at all: the founding generation in the one case, and the people legislating power in the other. In The Social Contract, representation is res ficta not in the sense that it is the same reality (sovereignty) under a different guise (mediated rather than immediate), but in the sense that it is a surrogate reality, something that occupies an empty space (which is why it was invented in the Middle Ages, when res publica no longer existed). De facto, the representatives are the sovereigns. Within the theory of freedom as the “will of immediate freedom” (“volont´e de libert´e imm´ediate”), any indirect form of influence or action is a “lie.” A lie that is perhaps needed (“Can liberty be maintained only with the support of servitude? Perhaps.”), but a lie nonetheless.137 Rousseau grafted the norm of sovereignty onto a realist ontology that expelled all forms of symbolic construction and discursive agency from the decision-making process, all forms of as if reasoning. Relying on the past or the future would be like basing one’s decisions on principles or values that exist only as a mere product of the imagination.138 On this account, direct ratification entails direct correspondence between words and facts, so to speak, with no intervening of fictional reality. Indeed, speech can be eloquent as well as simply speak.139 In other words, it can both disclose knowledge and meaning (of things) and open the breach to ideology and rhetoric (when words are grounded on judgment and imagination only). Hence, expunging judgment from the public activities of the sovereign was for sake of keeping ideology and rhetoric out of the public space of decision. This is why Rousseau opposed representation as strenuously as he praised the directness of unarticulated voting on specific concrete issues.140

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At the end of this critical analysis of Rousseau’s antirepresentative politics, I would like to disclose the positive use one can make of his rejection of representation. As we saw, all his arguments against representation rest on the normative maxim of political legitimacy according to which politics should take “men as they are” and “laws as they might be.”141 How should the relationship between the is and the ought be interpreted? Should we agree with Montesquieu (and Sieyes) that the system of government that reflects or adapts or corresponds to existing social reality is “good”? Should the ought be interpreted to mean the determinant or genetic reason for the given? If this were the meaning of Rousseau’s maxim one would expect him to conclude that the representative system is the best possible government for the moderns, given the way modern men “are.” Yet he said exactly the opposite and did not think that political laws and institutions should reflect social reality. When Rousseau writes that men should be taken as they “are,” he is referring to their anthropological reality: men who have some remnant of the natural sentiments and the vices and virtues of their second nature. His realism is unrealistic, so to speak, grounded in the philosophy of the “natural order” versus the order of the socialized man. Men should be taken neither as they are in a given social organization nor as they are according to an ideal of perfection that cannot belong to them (neither as servant and master, thus, nor as angels or finally autarchic beings in the hypothetical state of nature). They should be taken as anthropologically endowed with their peculiarly human double nature which makes them able to desire (and understand) harmony (the norm of the good order) yet weak in their ability to perfectly realize that desire. Realism relates to what we as humans can aspire to, not what we are in the here and now.142 In The Social Contract, the chapter on representation follows the chapters that analyze how popular sovereignty could fail and how such failures could be prevented. Rousseau uses representation as evidence of the decline of sovereignty, not as a cause of that decline. He argues that, historically, representation was invented at the end of the ancient republican civilization, after several social and political changes had taken place that had fatally ruined the possibility of reinstituting the republic. Yet the fact that it became unavoidable doomed it both as norm and as a good expedient because it took men as having been corrupted by society and not capable of aspiring to something better. After the decline of the ancient republics, in other words, the task should have been that of creating a modern republic, not abandoning the project of a legitimate political order altogether. Contrary to Montesquieu’s model, thus, society should not be used as an excuse or justification for political 99

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institutions. If there is a struggle between the logic of “things” and the logic of “legislation,” the latter must prevail: “It is precisely because the force of things tends always to destroy equality that the force of legislation should always tend to maintain it.”143 Rousseau’s seminal insight is that the social order, a source of artificial inequality, should not be made into a source of legitimacy for the political order. The identity of the citizen is endowed with an axiological value of its own because it constitutes a sphere of relations within which individuals treat each other as equal by giving the voice of all authority in the making of decisions that hold equally for all. A sociological justification of representation would do exactly the opposite of what Rousseau thought legitimacy should do: make “men as they are” into the norm, accept the fact that the “particular will” substitutes for “the general will,” that representation institutionalizes the antisovereign in relation to which the sovereignty of the law becomes an anachronism.144 As reversed logic, this would validate Rousseau’s conclusion that representation indeed enacts a modern form of slavery. In conclusion, one positive teaching of his extraordinarily cogent critique of indirect politics is that a democratic theory of representative government cannot evade the problem of a normative source for legitimacy. Instrumental needs and expediency cannot be enough of a justification for political representation.

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Will and Judgment: The Kantian Revision Contemporary democratic theory can profit more from the questions Rousseau asked about political institutions than the solutions he proposed. It is important we recall the reason why he disdained representation: he thought that the general will should function as an ongoing reminder that the quest for political justice is always a quest for legitimacy and that inequality is the sworn enemy of a legitimate government. Both the quest for legitimacy and the quest for equality indicate that the citizen should redeem, but neither replace nor transcribe, the “social man.” Yet the “social man” seeks consistent political representation and a responsive relation to state institutions. Rousseau’s political model lacks the theoretical wherewithal for such consistency and responsiveness. This chapter addresses this dilemma. Immanuel Kant will serve as my guide because, despite his adherence to Thomas Hobbes’ state positivism and his hostility to democracy, his theories of legitimacy and judgment offer us some perceptive indications on how to overcome the constraints of the externality of physical presence in political processes.1 Rousseau grounds his theory of political legitimacy in two arguments: the identification of popular sovereignty with the generality of the law, and the identification of the generality of the law with direct popular legislation. The former founds the claim for justice as impartiality and the rule of law, and the latter the claim for a specific institutional setting. Of these two arguments, the latter excludes 101

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political representation. The former does not. But do we have to consider these two arguments together? According to Rousseau we do. The maxim “Any law that the people has not ratified in person is null; it is not a law at all” translates into the norm that the source of legitimacy is the actual, not just the figurative or imaginative, action of the sovereign.2 The problem, though, is that individual wills notwithstanding, no theory of public reason can attribute will to a collectivity, to a people. (Rousseau implicitly concedes this point when he argues that citizens who sit in the assembly should reflect on what the general will would dictate in the particular case under consideration, thereby implying that public choice is neither a natural nor an effortless attribute of the citizenry; it is an artifact.)3 Rousseau’s theory of political legitimacy is externally determined: “the people” (as a geographic/physical entity) makes political decisions that are bounded by space and time.4 He denied, quite logically, that imaginative or deferred presence could replace actual presence: no one can pretend that she is physically in the assembly if in fact she is not.5

Freedom from the Externality of the Presence Kant is the author who can lead us toward the revision of the modern doctrine of sovereignty. He reinterpreted Rousseau’s two arguments of legitimacy by making the first (the identification of sovereignty with the generality of the law) an argument that pertains to the exercise of political power (forma regiminis), and the second (the identification of the generality of the law with the will) an argument that pertains to the form of sovereignty or the number of those who hold the sovereign power (forma imperii).6 Kant clarified that the former concerns the rule of law and constitutionalism (“how the ruler rules”) and the latter the political authority that institutes and enforces the law (“who the ruler is”), and that only the former is constitutive of the three attributes of citizenship: the norms of freedom, equality, and dependence on the law alone. Legitimacy is right itself, representative republic its political form.7 In that Kant gave the representative republic the status of noumenon, representation was not a practical expedient replacing the ideal model of directness. The difference between representative and nonrepresentative regimes became synonymous with the difference between judgment (the general will) and capriciousness (arbitrary will); or between the will as an act of subsuming the particular under the general (sovereignty of the 102

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law) and the will as an act of subsuming the general under the particular (the will of the stronger or the ruler). Representation came to denote a conception of public that was wholly emancipated from private criteria and forms of power relations and normatively structured so that each citizen was entitled to make judgments on public issues, although only some were actually in charge of performing temporarily governmental functions. As we shall see, Sieyes and Condorcet translated this conception into actual constitutional designs for representative government. The key to Kant’s innovation lies in his analysis of the forma imperii, that is to say the relationship between power and the will. In Kant’s language, power relations can take two forms: imperium paternale and imperium non paternale sed patrioticum. Autocratic government and legitimate or republican government entail two ways of acting in the place of. Yet only the latter is actually an indirect (and therefore legitimate) form of power. Paternal rule is despotic. Its indirectness is spurious and fictitious because, like the parent-child relation, it translates into the subject’s suspension of moral and juridical autonomy and annuls completely representational relations. It is autonomy of judgment that makes indirectness legitimate, the fact that the ruler and the ruled can make an “as if” judgment and imagine themselves in the place of the other. Acting in the place of is a transitive mode of action that is predicative of a normative relationship of reciprocity; it designates that the law, not the will, is the site of power (and sovereignty). A will that expresses itself with a view to actualizing some subjective goals is still a moral will, not yet a juridical will; its character is unavoidably paternalistic and arbitrary although the outcomes might be good and the subjects in agreement with them. Acting in place of becomes a form of domination when it assumes that the citizens are “as immature children who cannot distinguish what is truly useful or harmful to them.” In paternal government, indirectness and representation are phantoms as much as the law. Here indirectness is substitution and hierarchy rather than a mediated relation of power, an ad hominem form of indirectness that is arbitrary because self-referential. Paternalist indirectness is displacement of the juridical order as such, a true expression of direct power that places the ruler in the position of imposing his commands outside any norm and actually being himself or his will the norm.8 The ruler does not represent the good of the ruled but is the judge of what is good for them. The test of the legitimacy of indirectness is its reflectivity, which is also the qualification of judgment in evaluative or noncognitive domains. As we read in The Critique of the Power of Judgment, “The power of judgment in general is the faculty of thinking the particular as contained under the 103

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universal. If the universal (the rule, the principle, the law) is given, then the power of judgment, which subsumes the particular under it . . . is determining. If, however, only the particular is given, for which the universal is to be found, then the power of judgment is merely reflecting.”9 The latter is in need of an a priori principle that it cannot borrow from experience: in the moral or human world, this principle is liberty, the universal voice in conformity to which all judgments acquire legitimacy. Once we transfer the above capital distinction to public relations, we have that political actions consist in searching for laws that regulate a transitive relation between actors and recipients of the law, not merely a physical substitution in the act of decision: this is the only condition that allows some to act in the place of others (or to be their representatives) and all to be free. Indirectness, therefore, is not the opposite of autonomy because it is antithetical to the norm of participation; neither, on the other hand, is directness alone synonymous with freedom and legitimacy. Indirectness entails co-participation, not submission and substitution for participation. It entails the existence of a purely normative shared world that requires us “to think of possession apart from possession of this object.”10 In nonrepresentative regimes, the sovereign is like a property owner who can decide to do whatever he likes with his possessions simply because they are his and there is no intermediary between him and them. He decides in a kind of autarchic mental isolation and by a solitary act of the will, hence outside any grammar or relationship with others, and certainly his subjects. The Social Contract ’s requirement of silence in the popular assembly is a sign that political power is still held in a form that is not completely public because not entirely communicable and “far from concerning itself with humanity.”11 The maxim of voting in the assembly in silence implies that there, citizens have no moral obligation to make public the reasons for their decision and that the outcome of their reasoning is a judgment of existence or cognition, not a normative or evaluative one. As a matter of fact, giving reasons implies a selflimitation of power, something that contradicts Rousseau’s principle of sovereignty. The incompleteness of publicity in his theory of legitimacy derives from the unmediated physical presence of the sovereign (“how the sovereign rules”) not from the composition of the sovereign body (“who is the sovereign”). Which means that people’s political inclusion in the decision-making power is not predicative of their unmediated physical presence. This is the missing piece of Rousseau’s theory, which accounts for his sovereign’s lack of security from its own arbitrariness. To be consistent with his metaphysics of presence, Rousseau had to concede that 104

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the people can make whatever laws they want no matter how harmful (although he thought it would be irrational for people consciously to want to harm themselves).12 The point is that even if the sovereign chose to harm itself, nobody had the right (and the good argument) to stop it. Although he agreed with Rousseau that no one has the right to directly intervene to block the sovereign (be it through revolution or outside intervention), Kant’s distinction between the normative level (noumenal) and the political or factual level (phenomenal) acknowledges the right of each citizen to judge the state’s decisions and imagine himself in the place of the sovereign (or the law)—to be, in a word, representative of the norm and to participate in the common understanding which is the condition for the universal validity of judgments that are not falsifiable since there is no external object (and no necessity either). To be sure, Kant did not directly link citizens’ judgment to its political validity, and personally thought that the citizens’ right to judge must not translate into a right to political association or make their judgment public, conditions that are essential both to democratic dialectics and the political process of representation. Kant was not a democratic theorist (although he was a theorist of limited as elected government) and was personally afraid of the potential for discord coming from the public and political use of judgment. Yet he understood quite clearly that opinion influences the formation of the will and the evaluation of political acts, and settled on the theoretical premise for making the informal sovereignty of judgment a criterion of evaluation of any form of political government and decision. Although not falsifiable, reflective judgment cannot be a purely subjective utterance or arbitrary assertion. The sense of commonalty with others, the idea that all could understand and hypothetically agree with a subjectively made judgment, is the principle of universal validity that makes judgment a representative faculty. Universal communication or representative participation is the norm. Kant used representative politics to amend Rousseau’s unsettled relationship between the will and judgment because he detected in representation two necessary requirements of legitimacy: publicity (without which there can be no representation) and the indirect exercise of power (representation exemplifies the nonphysical relations between citizens in the act of lawmaking). Kant’s reasoning led to the conclusion that the alternative to a represented sovereignty is an existential will or an act of decision that no number or aggregate of lawmakers (not even a collective sovereign) can purge of its factual arbitrariness: “any form 105

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of government which is not representative is essentially an anomaly” or, properly speaking, a non-form.13 The opposite of a represented sovereign is an arbitrary (or potentially arbitrary) sovereign, not political autonomy or participation. The strength of Kant’s reasoning is shown by the fact that it influenced his own political views. Indeed, although he criticized democracy, the norm of legitimate indirectness (representation) led him to believe that the presence of the people in the articulation of power would not change the fact that the people would act as the representative of the norm or constitution in any case.14 Representation put the finishing touches on Rousseau’s theory of legitimacy: nonrepresentative democracy, like nonrepresentative monarchy or nonrepresentative aristocracy, were actually identical insofar as they were forms of illegitimate power because in all of them the ruler acted as an absolute master and made command a direct expression of will. Immediateness and directness negated the sovereignty of the law because they infringed on the public (as a normatively mediated) form of political power. To sum up, representation allowed Kant to perfect the distinction between forma regiminis and forma imperii left ambiguous by Rousseau’s identification of politics with the inwardly articulated will and the actor with the voters’ actual presence, which implied that making the subjects sovereign (allowing the ruled to rule) would be enough to guarantee right and fair decisions.15 Although he stressed repeatedly and forcefully that the general will is government by law, Rousseau did not provide any viable criterion to disentangle the law as the measure of rational consent (legitimacy) from the law as legal coercion (legality). The “directness” of the will was, to paraphrase Kant, the source of two related flaws in Rousseau’s theory of political institutions: there was no check on legislation (lack of constitution) and there were no mediated forms of decision-making (lack of representation).

The Subterranean Work of Informal Sovereignty Kant’s theory of representative noumenon corroborates my argument that the politics of the will is the insurmountable obstacle to any attempt to bring sovereignty within the domain of judgment and opinion, the premise for a democratic reinterpretation of representation. To be sure, Rousseau did not exclude the possibility that the general will may be interpreted as doxa. Actually, he hinted at opinion as a feature of sovereignty, although he deliberately exiled it from the politics of the 106

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sovereign. In The Social Contract, commonalty of individual wills and the almost spontaneous conviction about the general good configure the “general will,” which conflates both the will itself and judgment (which kind of judgment will soon be clear). It conflates the latter as the presumption each citizen makes about the generality of his identity as a citizen. The possibility that decisions will be consistent with the general will is based on this presumption. In Rousseau’s model, “votes already deliver an opinion about the proper balance” between individual interest and the general society’s or, as we have seen in previous chapter, they strike a balance between the two.16 Let us proceed gradually and revisit first Rousseau’s argument about how political autonomy can be reconciled with majority rule. The question “How is it possible for an individual to be free and yet be subjected to a will that is not her own?” is incorrectly posed because Rousseau believed that the citizen consents to all the laws, even those that punish him when he breaks them—that is to say, even those that treat him as a subject. Subjection is universal and not conditional on the actual approval of each act of the state. Lawmaking is just the same. Yet while it is relatively easy to understand the universality of the will from the perspective of coercion—the citizen as a subject—it is more difficult to see from the perspective of lawmaking—where the citizen acts as an agent. Indeed, how can the principle of political autonomy be reconciled with the fact that someone is still a self-governing citizen when she obeys a majority she is not part of? As we saw in the previous chapter, Rousseau tried to solve this problem by focusing on the mental work the citizen does when voting on laws. Her work consists in asking herself not whether she approves or disproves of the proposal under consideration, but whether that proposal conforms with the general will which is also her own will when she reasons as a citizen. Thus Rousseau could say that when the citizen gives his opinion as a citizen, the sum calculus of all opinions is the declaration of the general will. If an opinion that is opposed to mine wins this means that the general will was not what I thought it was. It is clear that to make this odd statement Rousseau must use the category of the general will not as “ought” but as “is.” This is the only possible explanation for the conclusion that the minority “errs.” Indeed, the general will is a statement of fact, not a preference or a desideratum or a prescriptive norm. As such, we can assume that everyone is capable of the same understanding if they judge according to the same point of view. Each and every person is testing a fact, not a mere object of personal desire, nor finally an ideal that is open to a variety of interpretations or 107

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to persuasion. Its organ is cognitive judgment, not evaluative judgment or rhetorical argumentation. Truth and wrong is the pair of opposites here—a proposal is right because it is true.17 It might sound paradoxical to say that the vote does not express my will in relation to the specific proposal I am asked to vote on, but that it expresses what I want to see become a law. Yet the citizen judges a proposal not in itself but as a would-be law. He makes a hypothetical judgment insofar as he tests whether that proposal has the charisma of the law (consistency with the general will). If a proposal passes this test it is true and just. The proposal already has the attributes of the law before the voters see it. In a Platonic vein, Rousseau’s citizens are asked to unveil the substantial form of the law rather than make the law. One might say that they do not make the law but give the law explicit material form. This is the aspect we should focus on in order to clarify the analogy (and difference) between general will and general opinion and understand why obedience to the majority does not violate autonomy. When the citizen casts her vote, she is supposed to listen to her public will (the will she has as a part of the general will), not her private will. As I explained in the previous chapter, there are two selves (and wills) but only one should talk (with the voice of reason, not oratory) and be listened to in the public setting. When the citizen who casts his ballot has no trouble making his public self talk and his private self silent, it means that the general will is operating easily and smoothly like an intuition (or a natural emotion), so that the individual citizen does not need to mobilize his censuring sense of the public against his private self. As James Bryce put it, the degree to which the general will corresponds with the general opinion that circulates in public is the thermometer that measures the strength and health of political freedom.18 The deeper and easier the correspondence, the smaller the gap between “legal” country and “real” country. In this sense, general will and general opinion are two manifestations of sovereignty. Both of them are essential and exist in a mutual relation of sympathetic attraction or action-and-reaction. In book 2, chapter 12, of The Social Contract, Rousseau lists four kinds of laws, three of which belong to the same genre whereas the last one is unique. The first three are juridical, formal, and procedural (political laws, civil laws, and criminal laws), whereas the fourth is in a class of its own. “I am speaking of mores, customs, and especially of opinion, a part of the law unknown to our politicians but one on which depends the success of all the others.” This “law,” “la plus importante de toutes,” is what today would be called the general public or public opinion. It operates from afar (or beneath) like an invisible force and exercises 108

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indirect influence rather than direct authority. It is the voice of the sovereign (Rousseau uses the word “law,” a term that applies only to the sovereign, to denote it) although it does not operate only in the presence of the formal sovereign but always, and not through state coercion but sympathetic imagination. However, without it the legal system would be a purely formal norm with no conscious acceptance by the citizens; the law would be de jure effective but de facto not supported by the people as a whole and thus felt by some to be as oppressive as an illegitimate law. If majority rule is not to contradict political autonomy, these two levels must be always connected. The formal sovereign does not substitute for the absence of the informal one, the general will for the absence of the general opinion. The dialectics of the majority and the minorities presumes the informal as much as the formal sovereign and is what makes the citizen free when she obeys a law she disagrees with (representation partakes of the same logic). A political body is held together by the fact that all the citizens agree on the ends of the political order, on the principles that allow them to operate, and on the means by which the government and the deliberative process operate (we might call this underlying agreement “constitutional ethos”).19 Given this basic agreement, although the opinion of the majority prevails, the political community in its entirety should still be capable of representing itself as the largest one, larger than the will of the majority and the numerical consent in general.20 We can now return to the moment the citizen casts her vote and the inference she is supposed to make in order to make a just-as-true decision. As I have just shown, the kind of reasoning the citizen is supposed to make is a practical, nonsubjective general judgment (reduction of the “ought” to the “is”). The citizen does not ask himself, “Do I like this proposal” or “Do I approve it?” He asks himself, “Is this proposal consistent with the rationality of citizenship?” To formulate this question, the citizen must interrogate a reason that she, like all other citizens understands (which cannot therefore be her private reason, something that everyone would not understand). She must reason ex hypothesis or situate herself from the point of view of the general public (trying to think how other citizens would think). If she reaches a conclusion that does not win the majority of the votes, she “errs”—either because her reason or her virtue have failed.21 In other words, the vote is a manifestation of a will that is in fact a judgment because it rests on the hypothesis that the general will actually exists, a cognitive hypothesis that every body is able to make and thus 109

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should make regardless, one could add, whether everyone comes to the same conclusion (or whether everyone is physically present in the act of decision). This happens both in the (easy) case wherein voters expect they will win a majority and in the (more difficult) case wherein voters in the opposition expect to end up in the minority. This is exactly what happens in representative politics and what makes the law passed by the representatives legitimate. Much like the majority in Rousseau’s direct assembly, the elected representatives (who make laws all must obey) must pass the test of the ex hypothesis judgment.Transitivity and reciprocity (the conditions for indirectness or as if reasoning in power relations wherein neither unanimity nor directness can be the norm) are prerequisites for the redemption of Kant’s principle of legitimacy. It is now possible to see why and when the minority do not feel oppressed and outside the general opinion like exiles or pariahs. Citizens who happen to be in the minority don’t feel oppressed or excluded because even if they suspect beforehand that they will end up in the minority they know they have participated in the making of the law and the expression of the majority opinion. In fact, the minority plays an essential role in the creation of the majority and in its legitimacy. This happens because membership in the minority does not imply opposition to public opinion but only to majority opinion on specific issues; in fact, minority opinion is contained within the totality of the general opinion of the country.22 The general public plays here the role of the nonjuridical sovereign. It coincides with l’opinion of Rousseau (the “fourth law”); it hovers beneath the political order and makes all citizens feel that the process works and is perceived as legitimate. From this perspective, even a law passed by the majority enjoys consensus (which is not the same as unanimity of the will). The relationship between majority and minority resembles that between the citizens and the elected in a representative democracy insofar as in both cases everyone plays some role in forming the character of the constituency and shares in the mutual influence engendered by their communication. Moreover, both pertain to reason ex hypothesis and can situate themselves from the point of view of others when they judge political issues and evaluate one another’s behavior. All can judge in this way without ever being physically present, as Kant observed. Rousseau foresaw this broader implication, which is the theoretical premise of political representation. Yet he did not go so far as to endorse it; he chose not to examine the “fourth law” in his Social Contract. In the spirit of the absolutist tradition, he stated categorically that the sovereign (and thus politics) pertains only to the formally authoritative 110

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presence—to the will alone, not deliberation. In order to transcend this minimalism and open the door to political representation, Rousseau would have had to deny the atomistic premise on which he grounded popular sovereignty.

Individual Atoms in a Participatory Void Rousseau’s norm of political legitimacy claims that decisions are just and true as long as they are made by individuals who do not cooperate or even communicate (although they de facto need to cooperate and communicate because they are weak and imperfect). The paradox of his norm of “political association” is that the actual association of men is its main enemy and obstacle. Yet if popular sovereignty means anything at all, it means the broad current of decision-making along with all the discussions that lead up to the vote and influence how people think (the magistrates as much as the citizens). Precisely because citizenship is an artificial status and the law an expression of artificial reason, Rousseau argued that the sense of authorship is important. The way this feeling develops and expresses itself is also crucial; but he did not explore it. If, as Condorcet argued, the sense of political authorship is strengthened not merely by the fact that everyone votes, but by the fact that everyone knows that they have all contributed to “prepare for a common decision,” communication between the inside and outside of state institutions, rather than polluting the act of the will, as Rousseau feared, endows the decision with the character of a public and collective enterprise.23 This involves examining the issues, forming personal opinions, evaluating probable consequences, and associating with others to identify problems, propose solutions, or simply criticize decisions. It requires listening to others’ opinions and evaluations, revising them and reducing them in order to craft a position that is more general and can garner broader consent. This type of complex work does take place in Rousseau’s republic, but only among the few whose deliberative activism allows them to develop a sense of unity and esprit de corps. Of course, citizens also need to be involved in common activities and develop a sense of unity (the “fourth law” has this meaning, after all). The problem is that, as we saw in the previous chapter, in Rousseau’s republic the people are not supposed to be “educated” through deliberative activism or participation in political associations. The people’s sense of unity is constructed outside the political domain properly defined: by symbolic rites such as public ceremonies, festivals, and songs—in a 111

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word, by nonrational as nonpolitical (that is, not regulated by formal procedures) events. Just as we are not told how the magistrates deliberate when they meet, we do not know what citizens do when they are not assembled. In both cases such knowledge is completely irrelevant to sovereignty. The elite strengthen their unity through speech and reflection (and lack of responsibility for the outcome, since the people, not them, decide anyway), while the citizens strengthen it through patriotic emotions (and total responsibility for the outcome, since they are asked to say yes or no). Rousseau’s model is Plato’s guardianship, within which the few practice only reasoned discussion while the many are convinced by means of “noble lies.” Thus his alternative to a true representative assembly is competent and political participation of the few along with patriotic, and formally nonpolitical, participation of the many. Universal and direct ratification does not fill the political void in which Rousseau’s citizens live. Rousseau’s disassociation between the will and judgment shows all the weakness of a rationalist ontology. If political liberty (or democracy) consists in a procedural system of arriving at correct decisions, then political liberty is fulfilled as long as citizens do not communicate among themselves: only under this condition can ratification in the assembly produce the right result. Yet doxa relies on communication and comparison of ideas. Unlike analytical reason, l’opinion is never the result of one individual’s reasoning and is always ideologically thick. However, isolation is the rule in Rousseau’s formal republic because, as his most admired Spinoza thought, the natural conatus pushes each individual toward the fulfillment of his nature, which is always in harmony with both the species and nature as a whole on the condition that exogenous factors (such as opinions and passions) do not interfere. Going back to the issue of judgment, once applied to democracy Rousseau’s theorem holds that good laws require only raw information and, moreover, the right amount of such information. Interpretation, opinion, and individual judgment are out. This is where Rousseau gestures to what could be called the antinomy of democracy: on the one hand, it is the name of a form of government (the “is”), and on the other it is a rule of reason (the “ought”), not an actual order of the state. Rousseau’s politics of silence and the mistrust in civil and political groups and communication are antidemocratic. They are useful heuristically, however, because they highlight the imperfect context within which democracy operates—the fact is that it is impossible to tell how much information is needed to make a good law and where the raw information should 112

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come from, since no individual is de facto neutral because no one is absolutely isolated from others and indifferent to his/her interest or completely virtuous. Not coincidentally, information and the related issues of the ownership of the means of communication and pluralism are the primary, and as yet unsolved, problems of democracy. Rousseau intuited these problems when he selected his focus: how to ensure that the individual will does not affect political decisions. The simple question citizens are supposed to ask themselves denotes a politics of constraint rather than expression. His acceptance of majority rule for ordinary legislation reveals his pessimism about human nature. By the same token, although he understood the relevance of deliberation in practical politics and public opinion, he resorted to a behind-the-scenes strategy and wanted to ensure that deliberators had qualities like virtue and wisdom that were not universally distributed. The fact is that, since human virtue and public reason are fallible, the meaning of democracy must be expanded to include the social labor of critique, oversight and deliberation, will and opinion. It is better to involve the many in this comprehensive work of deliberation than to rely on sheer luck to elect a few virtuous and good leaders. In sum, representative democracy corrects Rousseau’s theory insofar as it restores deliberation to the citizens and makes them the best judge of the “wisdom” of the few. This does not mean dropping Rousseau’s intuition that the “general interest” is the source of legitimate laws, but rather reinterpreting it as a criterion of political judgment that circulates throughout the democratic society, rather than solely at the precise and narrow moment of legislation (or election). Having said that, it would be interesting to compare direct and representative democracy by asking the following question: Which of the two forms of democracy more accurately represents the citizens’ minds? Direct democracy is a system of decision-making that presents citizens with yes/no questions, and therefore produces decisions that only poorly represent citizens’ minds. Direct democracy cannot accommodate pluralism of opinions. “Paradoxically, in relation to [the democratic requirement of] representativity, direct democracy is less representative than indirect democracy” because the way it formulates issues to be voted on reduces all differences of opinion to two, meaning that democracy as ratification forces the citizens to level and merge their differences.24 Direct democracy may be based on the direct presence of the citizens, but this very presence is much less representative of their ideas than their indirect presence in a representative democracy. Sieyes revealed this paradox as early as 1789 when he said that forms of collective 113

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deliberation that are supposed to take place without individuals either interacting or acting together are “absurd.” (Like almost all his contemporaries, though, he saw civil associations as a threat to the unity of sovereign authority.)25 Deliberation implies a continuum between outer (“la place publique”) and inner (the mind of the citizen); it requires people to reflect on their views in the company of others, even if they make the final decision alone. Absent such a context, if citizens have to think in isolation, each one of them would always have to begin his thinking again every time he has to make a decision.26 As a result, direct rule fails to produce decisions that reflect citizens’ views in the making. It is rigorously individualistic and in fact atomistic on the legal level, yet flattens and levels individuals’ different perspectives and visions on the political level. Legally individualistic, it fails politically to reflect the specificity and uniqueness of individuals. Supporters of direct democracy have surmised that this is positive because it means replacing ideological (party) politics with a politics that is objective and attentive to the “reality” of “concrete questions.”27 When ideas are reduced to yes/no options, politics will be liberated from ideology, and transparency and objectivity will be achieved. According to Marx, and more crudely Lenin, legislation in a nonrepresentative democracy would be a simple matter of solving technical problems rather than a spectacle of manipulative oratory or a forum for conflicting opinions; it would be an essentially apolitical work of practical implementation and instrumental rationality because it is not driven by interpretive disputes.28 People with identical interests who dissect practical problems rationally can end up with only two opinions. The evaluation of the better one can be calculated with objective accuracy; there is only one good answer, and dissent is symptomatic of a lack of understanding or knowledge; it is an error, as Rousseau surmised, rather than an injustice.29 Yet rationalistic democracy is not ideology free. In fact, the dichotomous yes/no views required by direct voting on issues may be just as ideological as the ideological constructions of the multiple options naturally engendered by representation. The argument that nonrepresentative democracy withdraws the citizens from the “purely ideological struggles that representation creates” and brings politics to the “level of reality and the technical necessity that laws impose” is simply unconvincing.30 The myth of objective truth and justice rests on the audacity (or folly) of exiling evaluative judgment from politics in order to make politics into the arithmetical (and contestation free) assessment of right versus wrong. 114

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Rousseau identified the general will with cognitive rather than judgmental reason because he believed that legitimate government could only be objective to the extent that it did not represent people’s opinions. Yet can politics be rendered by analytical reason? And to what extent must the personal and the political be segregated so that one does not influence the other? Finally, can there be such a thing as politics apart from representation of opinions and convictions, interpretation and ideological construction? The rehabilitation of representation as a truly democratic institution, rather than an expedient or a second best, coincides with the rehabilitation of politics as the art of gathering consent to proposals that are supposed to respond to problems that concern everyone and arise both from the outside (society) and the inside (the state). It coincides with the appraisal of the role and meaning of ideology (ideas as creative factors) in the making of modern democracy.

The Soft Power of Judgment Judgment is an expression of freedom and initiates political activity insofar as it is the faculty that compensates, as John Locke argued, for the lack of clear and certain knowledge. Aiding imperfect human knowledge, it enriches the mind with freedom because, one might say, it lacks the strength of “demonstrative evidence.”31 The genus of freedom that political judgment needs and creates belongs to freedom as the desire to understand and scrutinize, examine, evaluate, criticize, and demand transparency in state institutions and representatives’ behavior. It is not liberty as the power to give laws unto oneself—like the moral sovereign in our inner citadel or the political sovereign in the state. Kant’s political writings depict the public world of critical judgment as just as free as the self-legislating sovereign’s; it is not an inferior freedom, nor a freedom that is worth less because it cannot command authoritative obedience.32 It is no weaker than liberty (or politics) “in the strong sense,” although its power is implicit and indirect. “What matters? (asks Judgment); What is the result? (asks Reason).”33 Inferences about right results are cognitive or true/false and based on some certain premises. But the fact that premises must be given implies the existence of a hierarchy of values (“What is important?”) that orders those premises, a hierarchy that cannot be reduced to true/false issues and that is not immune to contestation and disagreement.34 Kant does not just separate the right from the good; he sees no way to avoid the tension between morality and justice, the legally right and 115

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the morally good. His hypothetical state of nature is characterized both by Hobbesian egotism and instrumental reasoning and by conflicts over principles that cannot be silenced by the creation of state authority. These conflicts cannot be avoided by appeals either to claims of “unconditioned necessity” or to some intersubjective common understanding based on sensorial experience. “Common sense” can be invoked here only as an “ought.” “It [common sense] does not say that everyone will concur with our judgment but that everyone should agree with it. Thus the common sense . . . is a merely ideal norm, under the presupposition of which one could rightfully make a judgment that agrees with it.”35 People will thus disagree about the interpretation of the imperative, and they will disagree about the nature of the sensus communis. The positive law that results does not necessarily express any particular persons’ feelings about morality. Beyond the reach of conscience, civil laws are simply sets of rules that serve to guide external conduct, not conscience; they define the framework within which conflict can occur without seriously endangering the stability of the political order.36 This is why the ultimate justification of state coercion is the protection of the human right to be free.37 So while Kant, like Bodin, Hobbes, and Rousseau, subscribed absolutely to the theory of total political obligation to the law of the state, he created a new space for action between the inner self of the individual and the citizen; between the world of private morality (the identification of, and obedience to, the moral laws) and the world of political relations (the creation of, and obedience to, the law of the sovereign). This new territory entailed a dimension of freedom although it did not directly translate into legal commands. So whereas Rousseau recognized opinion as the “most important” language of the sovereign although its informal character convinced him to leave it out of the sovereign’s politics, Kant located opinion in the public sphere, which he enriched with a powerful analysis of the structures and forms of judgment, the most creative among the intellectual faculties because it is the only one that throws the theoretical and the evaluative (the “is” and the “ought”) into an ongoing dialogue-and-tension in which neither has a separate existence, even though they always threaten to reduce one to the other. Kant conceptualized a foundation of analytical reason (truth) and practical reason (duty) that was structurally identical to Rousseau’s principle of autonomy as self-legislation. Moreover, he posited a relation between the (individual) Self, legislating the laws of good and evil (moral), and the (collective) Self, legislating the laws of right and wrong (political). This relation was expressed in the creation of a public sphere of 116

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common conversation. The principles of practical reason were similar in character and scope to those of legality in politics. They were applied universally but were abstract and compulsory with no derogation in their character. However, Kant also argued that the principles inspiring and guiding our visionary reason were desiderata and ideal goals that, though they must not instigate resistance to the law, would create divisions within the domain of public opinion. They were welcome because they could inspire human action and make people ready to act. They were a “powerful incentive” to not merely obey the law (by threat of coercion) but to obey it with conviction as free citizens obey or subject it to critical interpretation. In the last analysis, principles are a medium of communication because “conversation in mixed company consisting not merely of scholars” is not emotionless, like scholarly communication, but is driven and nourished by the desire to “argue” and question “the moral worth of this or that action,” and to challenge shared views and engage with new proposals.38 So while he agreed with Rousseau and the theorists of absolute sovereignty that judgment can be represented precisely because it is powerless and parasitical on the will or the law, Kant asked himself one question theorists of absolute sovereignty did not: In what sense is judgment not a political act given that it covers a vast domain of reasoning about the relationship between the particular and the general, between facts and norms? The answer implied by Kant’s writings is that judgment and opinion are just as much sites of sovereignty as the will if we assume that sovereignty consists in uninterrupted temporality and the incalculable influence of basic ideals concerning the general interest that transcend the acts of decision and election. Furthermore, judgment has negative power, as Condorcet’s constitutional plan reveals. As such, it functions like a leading polar star or a mirror in which the rulers invariably tend to reflect or represent themselves39 (even if and when they do so to satisfy their passion to gain or regain consent, be elected and reelected). Judgment enhances representative politics, whose primary function is to make things that are otherwise nonempirically visible and touchable, like ideas and opinions, feelings of pleasure and displeasure, visible through voice. This hidden world would remain invisible in Rousseau’s republic. The complexity of practices associated with judgment designates a world of publicity that contravenes The Social Contract’s rule of silence as the condition for noncorruption because it does not narrow the meaning of reason to the “simple question” to be voted on. Judgment presumes a kind of reason that produces and aims at evaluation rather than 117

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cognitive or imperative inferences. It foregrounds interpretation and creates a public arena because it requires communication and open performance: a kind of conjectural reasoning that cannot be confined within the Cartesian track of clear and simple ideas nor be a solitary exercise of logical deduction from principles. Although thinking is something I do by myself within myself, it needs a medium of expression to feed on. The yes/no answer to the yes/no question is the final moment of a process that has already taken place, and without which it could not appear. As we shall see in the following section, this explains why Kant’s theory of judgment is never purely instrumental or translatable into a calculation of utility that terminates disagreement.40 This is the scenario we should refer to when thinking of representation as a democratic institution. Although not friendly to democratic participation, Kant’s reflections on judgment suggest we should pay attention to the nonrationalistic aspects that hover beneath institutions and norms. Decisions are never a mere rational-as-instrumental assessment of pros and cons because, as we have seen in the first chapter, actors are not neutral or passive recipients of ideas but elaborators with a more or less deep persuasion that their position is good or the right one. This gives deliberation an unavoidable rhetorical and ideological character, one that discourse theory has unfortunately dissipated but political representation creates and implies. This does not mean that the politics of representation excludes reasoned argument based on impartial premises. While it is important that people believe in the ideas that their representatives stand for and symbolize, democratic representation does not merely entail acceptance, but critical acceptance. As Pitkin put it: “It is important to ask what makes people believe in a symbol or accept a leader, but it is equally important to ask when they ought to accept, have good reason for accepting a leader.”41 The symbolic and the rational converge in this question: Do we have good reason to believe that a representative represents us, and what distinguishes democratic representation from mere acceptance of a leader or populistic investiture of the chief?42 Representation is neither abdication of the individual’s personal judgment nor symbiotic unification of emotions in the representative person. On this premise, it is correct to say that the representative is entirely constituted by and through her political relationship with her constituency; her belonging to the constituency is an idealized and artificial construction. Political representation is more than an act of authorization, although it depends on that act. Its complexity foregrounds an issue that contemporary theorists of democracy seem hesitant to 118

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face: the realignment of the deliberative theory of democracy with the ideological as rhetorical characteristic of the language of politics in the constitutive process of representation.

Ideology and the Representing Faculty of Imagination Although timely and pressing, the study of ideology is not among the objectives of this work. Suffice it to say that, beginning with the nineteenth century, when it made its appearance along with the process of democratization, ideology has been seen as a perversion of reason (psychoanalytic theories) or a means of domination and manipulation (Leninist theories) or a transposed representation of a social order (Marxist theories). Ideology has been judged from the point of view of an ideal of reason as objective and cognitive and in accordance with a model of scientific knowledge that mimicked that of the natural sciences. Although emancipated from positivistic mythology, contemporary theorists of deliberative democracy renew the old stigmatization of ideology when they identify deliberation with “authenticity” versus ideology, wherein the former is rational communication that “encourages reflection upon preferences without coercion,” while the latter is “domination via the exercise of power, manipulation, indoctrination, propaganda, deception, expression of mere self-interest, threats, and the imposition of ideological conformity.”43 The discourse theory of democracy is as hostile toward ideology as it is toward its classical ancestor, rhetoric. Participants in the deliberative practice, writes J¨ urgen Habermas, must consider one another as “competent subjects” and “morally and politically equals” in order for deliberation to be an expression of freedom, inclusion, and noncoercion.44 But rhetoric and ideology trump these two principles insofar as they teach us to use speech for the sake of victory, not necessarily a good victory or reasoned consent. In Habermas’ mind, democratic procedures, although like rhetoric they are designed not to attain “impartiality of judgment,” are meant to guarantee “freedom from influence or autonomy in will formation” and “to prevent some from simply suggesting or prescribing to others what is good for them,” two goals that do not belong to rhetoric.45 This means that precisely because of the unavoidable judgmental partiality that political deliberation involves, rhetoric and its modern equivalent ideology have a negative impact in democratic deliberation since they structurally mistreat both freedom from influence and autonomy in will formation. 119

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Contemporary theorists of deliberative democracy seem to prefer to side with Plato (and Rousseau) rather than Aristotle. Yet ideology is not identical with deception and manipulative propaganda, although it can also be that. Furthermore, the quest for ideology germinates from the very nature of democratic society—from the fact that our sentiments toward the phenomena we are asked to judge as democratic citizens cannot be grounded on cognitive data and raw information, and resolved into unquestionable verdicts. The ordinary practice of ideological reasoning is inscribed in the democratic norm according to which decisions are never nor can be acts of personal preference but are and should be opinions publicly discussed and formed, justified, and somehow “demonstrated.”46 Following Quentin Skinner, I employ here the word “ideology” to designate the use of beliefs and values in order to legitimize behavior and the active function of political ideas in the interpretation of social events and interests and to advance social visions.47 Popular sovereignty plays this type of ideological role insofar as it constitutes the basic criterion in relation to which democratic citizens judge their representatives and their policies, criticize asymmetries of power existing in society, and finally shape their political language, associate, and raise their claims. The ideologistic function of judgment is the paradigm in relation to which the idea of sovereignty acquires political significance in representative politics and overcomes the strictures of the ontology of the will and presence and the formalistic approach it entails. It is Kant, not Marx, who provides the key to reevaluate the role of ideas and beliefs in representative democracy and to reconceptualize sovereignty. Kant’s transcendental schematism amends Rousseau’s realism of the will. Transcendental schematism produces as if reasoning, which is a form of judgment that operates on issues whose ideal dimension is the only form of determination or reality—issues that are artificial and humanly malleable, autonomous from the world of nature and ungraspable with analytical reasoning and scientific epistemology, yet not arbitrary or purely subjective. Kant dubbed the power to make as if inferences “imagination” and described it as a spontaneous and creative faculty that “makes possible the application” of the intellectual to the sensible. “The schema is in itself always only a product of the imagination” as the “third thing” or “a mediating representation” that connects the category with the appearance.48 Imagination is the faculty of perception without the presence of the object or when it is not present empirically (spatially and temporally) but present only in and to the mind (through memory or tradition, for instance, or traces 120

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of images). This special ability induced Kant to distinguish imagination from any other forms of intellectual combination or association of ideas: “the figurative synthesis . . . must be called, as distinct from the merely intellectual combination, the transcendental synthesis of imagination. Imagination is the faculty of representing an object even without its presence in intuition.”49 Kant has two accounts of imagination: productive and reproductive, to which correspond two forms of judgment, reflective and determinant. Determinant judgment is the creative use of concepts for the sake of knowledge. “The schema of the triangle can never exist anywhere except in thought,” but it is what shapes my experience and allows my image (of the triangle) to be seen in concreto. On the contrary, reflective judgment is the creative use of concepts for the sake of understanding “something that can never be brought to an image at all, but is rather only the pure synthesis . . . which concerns the determination of the inner sense in general.” Time, the dimension of the inner sense, is the only dimension that pertains to it. Narrative, teleology, and the ideal world of principles are the ordering patterns that the correspondence of our experience with our feelings and opinions (like those of pleasure and displeasure) produces. In reflective judgment, the general principles and ideal norms under which we subsume the particular are not derived from experience nor given, but produced.50 I suggest we use this scheme of judgment to understand “representativity” or the “reflective correspondence” existing between representatives and represented and moreover the unavoidable link between the process of representation and an archetypal reality (the will of the people) that, although fictional, must be assumed. Unlike in reproductive representation, in productive representation (and political representation as part of this genre) “the ‘conformity’ would not just be regular correspondence between the effect (the object) and its cause (the representation), but also, to one degree or another, the resemblance of the object to the representation that is its archetype.”51 As we shall see in the ensuing part of this chapter, the mediation between the particular and the general is what constitutes political representation. Kant insists that “the reflecting power of judgment” consists in bringing together a universal and a particular (with schemata as a medium that makes this connection possible) and that this is how it differs from the “determining power of judgment” where the universal is a given wherefrom the mind descends to the particular and gives it a conceptual determination. Reflective judgment, on the other hand, is “under the obligation of ascending from the particular in nature to the universal.” 121

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Rather than a description, this involves the creation of meaning that endows an object with the characteristics of, for instance, the beautiful or the just that it could not have were it to be approached from the perspective of conceptual determination. Reflective judgment makes us see things from a particular perspective that is the creation of the mind (a situated mind, not an abstract entity), our “representative way” of seeing, but not a solitary perspective. This explains the argumentative and communicative character of judgment and its rhetorical potentialities.52 Indeed, while it is possible “to argue about taste” it is impossible “to dispute” about it because no beyond-disputation conceptual determination is available in the domain of general ideals. The most we can do is to have faith that “there must be hope of coming to mutual agreement” and to work for making it possible. Although it does not rely on data, however, imagination can enrich our understanding by activating new inferential relations among ideas and concepts and suggesting new interpretations of existing data. In fact, judgment is, in Kant’s mind, inherently driven by a conatus or force that presses the mind to “run through and through” in the effort to bring the two realities (that of sense-like objects and that of sense objects) as close to one another as possible or in sympathy, or to make ideals become effectual and real, and the real less opposite as possible to the ideal.53 Imagination is that force; speech and human creativity in the domains of art and politics are its products. (It might be useful at this point to recall the previous chapter, in which I mentioned the Aristotelian distinction/similarity of poetics and rhetoric versus Rousseau’s exclusion of both of them from politics.) The nature of representativity as reflective adhesion (of the representative to the represented) cannot be understood without contemplating the role of imagination because, as we have seen, representativity does not pertain to an existential or factual presence to be replicated or mimicked, but to a presence through ideas and communication that the political actors (representatives and represented) create. Furthermore, imagination is an essential tool in deliberation and discourse precisely because it mediates between sense and the intellect, and between the particular and the general; it makes the mind’s eye see a thing as if it were real and relate to others through it. It creates idealized realities (images) that affect the world of emotion and intellect (ours and others’); interrogates ideals and is the force that allows us to sympathize with others, change our previous opinions, and embrace new ones. Moreover, hypothetical reasoning has the power and capability to arouse the will; it does so by leading our reason to devise strategies that could attract consent: “there must be hope of coming to mutual 122

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agreement; hence one must be able to count on grounds for the judgment that do not have merely private validity and thus are not merely subjective, which is nevertheless completely opposed to the fundamental principle Everyone has his own taste.”54 Imagination is the faculty that makes our evaluative judgments entitled to demand general validity, sensus communis as we saw, and strive for it. This was the kind of reasoning that led Kant to revise Rousseau’s general will by describing it in terms of a fictional idea (als ob) or a guide to judgment and a parameter of political behavior; more generally, to reinterpret the idea of the social contract itself as “an idea of reason.” “But the spirit of the original contract (anima pacti originarii) involves an obligation on the part of the constituting authority to make the kind of government suited to the Idea of the original contract.”55 Kant’s social contract is a hypothetical thought experiment that the legislator can perform and in fact must perform to test the “rightfulness” of a suggested statutory law. The social contract is not an ideal beginning but a general criterion of critical evaluation (and action) that is always in place; a reasoning process the ordinary citizens and lawmakers, not only the legislator, engage in. It requires them to examine whether the people could reasonably be expected to agree, as if the law “could have been produced by the united will of a whole nation.” (This is also the origin of John Rawls’ distinction between “the idea of public reason”—the basic moral and normative agreement that allows for constitutional democracy— and “the ideal of public reason”—as the reference point for judgment that should guide all public actors, from citizens to representative.)56 The fact that Kant’s social contract theory is not about simple consent does not mean that it is a rationalistic formulation empty of practical implication. What is fed into the contract is not practical reason in the form of the moral will, but the interests of people as they exist in time and space. “Objective” and “unattached,” terms Pitkin used to denote the kind of “interest” that constitutes political representation, can be applied to Kant’s fictional idea of sovereignty or the contract.57 The interests of the people are objective in the sense that they exist even if the subjects are not actually aware of them or do not desire them expressly; they are unattached because they are relatively separate from the specific and idiosyncratic will and desires of particular individuals. Legislation can be a valid expression of people’s objective interests even though the people are “at present in such a position or attitude of mind that it would probably refuse its consent if it were consulted.”58 No doubt, distrust of the people and confidence in the wisdom of the legislator motivated Kant’s preference for agreement through representation instead of 123

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actual consent. However, we need to retain Kant’s intuition of the representative and the normatively driven role of the as if reasoning it implies.

The Fiction of As If As if reasoning operates in practical thought. As an organizer of action, it can prefigure very different scenarios, both utopian (future oriented) as well as preservative (past oriented). It is influential in an indirect, although relevant, way, not least because it leaves the door open to the unpredictable, the extraordinary or the “open-ended nature of the public realm.”59 Fictional reasoning is an aid to the development of desirable actions—not simply actions themselves; to a set of inferences that are functional to the performance of some desirable actions. It provides us with new resources “for thinking about ourselves and our situations,” and in this sense it deeply influences our language, emotions, and action.60 Thanks to paradigmatic fictions such as the presumption of the existence of some ideals or values or facts, a set of principles can serve as a guide to action for the achievement of what they command or claim.61 They can be transformed into maxims that our reason devises in order to create a pattern of behaviors or theories that will allow our actions to flow in accordance with principles (the principles that the reason proposes). A presumption of existence, as if reasoning has nothing to do with true/false categorization but is essentially oriented toward normative as right/wrong reasoning. It is a teleological inference that allows us to derive maxims or instructions for behavior. A comparison with juridical judgment can help us to understand the role of fiction as representational judgment. Cesare Beccaria (whose theory of public judgment played an important role in the eighteenth-century conceptualization of representative government) provided an early example of how fictional judgment could be applied to public reason when he argued in On Crimes and Punishments that a jury should reason (judge) as if the defendant is not guilty in order to avoid declaring him guilty by mistake, or making their personal prejudices veil their judgment.62 The presumption of innocence is an as if reasoning (a fictional reality) that directs the judges to pay attention to facts or particulars in order to interpret them according to, or to subsume them under, a general law or general principles—in other words, to judge them correctly (although the adjective “correct” is only partially dependent on cognitive judgment or the analytical truth); to 124

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discover a reality that would otherwise remain unattainable. Truth and justice become real as concrete achievements obtained by means of a fictional (imaginary) reality. As if or the presumption of existence makes the judgment on actual facts synonymous with prudence or practical wisdom. It defines the use of reason for the sake of realization (of just decisions) rather than knowledge.63 Sovereignty or the general good is an as if of this kind (although not oriented toward truth discovery). Its entity is ideological in that it is fictional, not existential or ontological. It is an idea of reason that brings together other general ideas such as liberty and equality and makes them applicable to specific and concrete facts. Its value as a guide to judgment allows lawmakers and the citizens to actualize liberty and equality in their norms and rules, or their concrete social relations.64 Without this presumption of generality—and the representation of our empirical society as a project we partake of and are included in—laws can neither be made nor applied, neither evaluated nor judged. Popular sovereignty expresses this type of reasoning. It is fictional not simply because it is nonempirical (this is where we transcend Rousseau’s burden of externality) but because there must be a “must be assumed” kind of reality if our actual world is to respond to or receive any norm, if a grammar is to link our individual judgments and evaluations to others’ in a meaningful way that is fit to be told and does not consume itself in the instant one decides. The fact that citizens represent themselves as “belonging to such a world” (such as the sovereign people) makes all of them into participants in the same project, just as if they were in the assembly, although their empirical location is elsewhere and their public functions different and varied.65 Inclusiveness in the fictional dimension of the collective is an essential condition of legitimacy, stronger in its emotional implications than the actual fact of being bureaucratically a member of the particular country in which we do our business and vote.66 Kant’s Metaphysics of Morals teaches us that within the dimension of judgment, relationships (both to other people and to things) acquire a nonphysical character. Existential presence no more confers the right to political freedom than it does a property right. “I shall therefore say that I possess a field even though it is in a place quite different from where I actually am.” What is politically relevant is not “being” physically present but the way we represent our presence or our actual condition in relation to the web of practices and norms we are part of. Having things under our control requires us to think of “possession” of those things apart from empirical possession. Upon this abstraction, Kant concluded, “is based the validity of such a concept of possession 125

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(possessio noumenon), as a giving of law that holds for everyone” regardless of the empirical circumstance each of us is in.67 A deliberative (as reflectively created) notion of sovereignty therefore accompanies a comprehensive reinterpretation of the notion of the “empire of the general will,” or, to follow Kant’s seminal suggestion, a rendering of sovereignty not as the voice of an existential being and immediate will, but as a guide to “reflection” in “the legislative bodies” and (we might add) in all instances wherein opinions are shaped—both where laws are voted on and in the informal meetings and extrainstitutional (but not extralegal) forums of opinion that are permanently active and influence the government and the representatives. As Condorcet’s 1793 Plan of Constitution shows, representation enriches the meaning of sovereignty by activating its double nature as both a constitutive guideline and a limit of or a way of supervising political power. It reiterates that representative democracy’s temporality is, like that of judgment, three-dimensional. It is a “conversation” between existing laws or practices and the actual conditions of peoples’ lives and their opinions, and articulates the potential for future changes and transformations led and inspired by the foundational principles that shape and structure our communal life.

Genera of Judgment Once the fictional character of judgment is clarified, we need to distinguish between genera of judgment. Although, as we have just seen, political judgment and judgment in justice share in the ex hypothesis scheme of reasoning, it is extremely important to outline what makes them different—what makes our public judgment as citizens different from the kind of judgment judges are expected to make.68 This distinction will allow me to complete the reflection on representativity I advanced in chapter 1. In John Rawls’ formulation, the idea of public reason applies to all issues that are fundamental to the preservation of the political forum and the decisions made by the actors operating in it (judges, government officials, representatives, and, finally, candidates and their campaign managers). In a constitutional democracy, citizens legitimately expect their “representatives” (all public officers, in this case) to act and decide according to the idea of public reason (which is what makes them citizens of a given political community).69 Yet although it is essential that all public officers are supposed to know they should act and are required to 126

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act according to the idea of the public, not the private, judgment in the court is not the same as political judgment or judgment in parliamentary debates, political campaigns, and even in the minds of the citizens when they go to the polls. The first and most evident level of difference derives from the fact that the power of the judge produces authoritative verdicts; this makes it essential that his deeds are strictly regulated and bounded by law. Rawls himself acknowledged a difference in effectiveness when he specified that, unlike public officers, citizens have only a moral not a legal duty to reason impartially.70 The second difference is more interesting to my topic and frequently neglected in contemporary theory of deliberative democracy and public reason.71 It pertains to the fact that the nature of political judgment broadly conceived is impartial in a way that the judgment performed by a judge is not—although it too aims to refer to general and impartial norms. No representative would dare to declare in public that his proposal supports some partial interests against the community’s.72 The presumption of generality and impartiality is essential to the legitimacy of public practices and belongs to equalitarian societies.73 Yet the presumption of impartiality in political deliberation is not the same as the presumption of impartiality in the judgment that is rendered in an enforced verdict. Judicial power as a true third power in Locke’s sense is impartial because and insofar as it is independent from the judgment of the actors. This means that, in order to be consistent with the idea of public reason and representative of the generality of the law, it must not be politically representative. The judgment formulated by the judge is supposed to represent not the sovereign’s political ideas or passions (informal sovereign) but only the authoritative voice of the sovereign (formal sovereign). The judge depends on the will of the sovereign (the law) but should not depend on the opinion of the sovereign. He cannot be representative of (the opinion of) the sovereign because he does not have himself the power to make the law and thus resist the law—wherein it is evident that opinion is directly related to sovereignty or the sphere of political deliberation.74 The relationship of the judge to politics is and must be indirect. The judge must depend only on the law that has been approved by the will of the sovereign; the judge does not depend on the judgment of the sovereign when this judgment is not yet in the form of the law—that is, when it is still in the political arena. The judge must depend only on the product of the will, so to speak, not on the will in its activating moment (which is political but not yet institutionalized in a norm of 127

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political reason). To give it a temporal location, one might say that the judge’s judgment relies on a past rather than a prospective will. So it uses the as if scheme in order to assess a truthful interpretation about something that already happened, as Beccaria wrote. This is why the judge’s reasoning should be free from desires, projects, and promises, which are the essential components of judgment in its political (ideological and fictional) sense, and without which the issue of representativity would be meaningless. This means that the jury in the courtroom is not involved in the case under consideration in the way representatives in the assembly or citizens at the polls are. Judges in the courtroom render retrospective judgments (verdicts), whereas the assembly renders prospective judgments (laws). Finally, the judge’s sentence is expected to be definitive, and the judgmental process takes place from the perspective of this termination of the trial. This explains the difference between forensic and deliberative speech; the former focuses on “the particular” and seeks the truth (revealing what is already there or what happened), whereas the latter, which looks at “the probable and the general,” is future-oriented, and results in decisions that can always be reviewed and revised.75 An articulation of the notion of responsibility is the key to comparing judgment in justice and judgment in politics. Empirically, there are two concurrent forms of responsibility, provided we look at public functions in relation to their source of authorization—which can be democratic (elections) or hierarchical (appointment from superior organs of political power). The difference between these two forms of authorization becomes explicit whenever one considers the difference between the judge’s responsibility in the United States and in Europe, respectively. In the former, the judge has political responsibility insofar as he is chosen in an electoral competition just like a political representative, and therefore reflects the opinion of the sovereign directly. In the latter, the judge has juridical responsibility (civil and criminal) and is accountable only to the law but must absolutely abstain from deferring to the opinions of the sovereign. The former presumes dependence, the latter presumes independence.76 This means that political representation designates a relation that is not one of independence even if the function it implies demands that the actor’s judgment be autonomous from electors’ instructions.77 Going back to the case of the Unites States, it is interesting to see that despite the general norm of popular eligibility, it has become the custom in many states to try to avoid partisan elections for the judiciary in order to reduce to a minimum the representativity (or political dependence) of judges, that is to say the influence of the electors over the administration 128

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of justice. Reducing partisan elections for the judiciary means augmenting their independence from the sovereign’s opinion and making them dependent on the law alone. By default, the implication of this custom is that electoral representation is exquisitely political in its own way because it is characterized by nonindependence from the opinion of the electors—although this dependence is not sanctioned by the law (the will of the sovereign) but is, to use Kelsen’s word, only voluntary. This amounts to saying that representation (and lawmaking) is indeed an issue of opinion and judgment—since only through opinion and judgment can the link between the representative and the electors be established and achieved.78 I can now return to the issue of the nature of judgment to make two final observations. First of all, the appeal to as if judgment in political representation is not meant to be an appeal to the same kind of impartiality that judgment in court is required to produce. To be sure, it entails an appeal to some common general criteria of evaluation and judgment (the constitution and the bill of rights or, in Rawls’ vocabulary, “the ideal of public reason”) in relation to which electors and elected alike should make only political judgments—and moreover in relation to which only communication or discussion and exchange of opinions can exist. The opposite scenario being a solipsistic activity (which is closer to the decisionist direction that judgment takes in the case of the judge who is supposed to render his verdict in complete isolation). In political judgment impartiality is ethical, not juridical; prescriptive, not formal. This is a kind of impartiality that does not exclude (but in fact implies) an ideological or desiderative use of judgment, to paraphrase Kant. I shall discuss this issue in the following session. The final observation I would like to make here pertains to the type of dependence implied by representation, or representativity. Representativity is, as I argued in the first chapter, that unique form of political dependence that makes representation democratic. It is unique because it combines popular political mandate and representatives’ autonomous decision-making—an oxymoronic mix from a legal and juristic perspective. Yet this is the locus of the democratic nature of representation, an aspect that theorists of representative government neglect when they focus on and stress the aristocratic character of election. Furthermore, the fact that representation excludes imperative mandate does not mean it excludes nonjuridical, political forms of dependence. Sieyes captured this peculiarity when he distinguished between the influence of the citizens over the representatives as “persons” and their influence over the process of “legislation.”79 The former cannot be sanctioned by law and 129

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in fact must be forbidden (free mandate). Yet the latter can and in fact does occur, albeit indirectly or through informal channels. Sieyes used this argument to strengthen his case against the “appeal to the people” in the form of a veto or referendum, to weaken and in fact eliminate all forms of direct politics by the people. Yet regardless of his strategic intent, the distinction he made between influence over the person of the representative (direct influence) and influence over the political process (indirect influence over the ideas) was a crucial acknowledgement that in a representative system, confidence would have to comply with political mandate—in other words, that representation entails representativity.

Political Dependence The issue of the representative’s judgment as dependent judgment brings me to a further and final step in the revision of the voluntaristic doctrine of sovereignty that interrogates the extension of the paradigm of the contract to representation. As I argued at the beginning of this book, the model of the contract obscures a clear understanding of representation as a political process because it obfuscates the circular relation between the represented and the representative, and between citizens and institutions. Reasoning from the perspective of the private paradigm of representation, Rousseau correctly asserted that political freedom renders the view of the citizen/state relation as a contract of alienation or transmission illegitimate. If representative government were a system in which the will of the representative assembly were the will of the people in a juridical sense, Rousseau’s references to the fictitiously free and de facto slave Britons would be justifiable. As Kelsen was to sarcastically argue many decades later, the mythology of parliamentary sovereignty inaugurated by the English and French revolutions is a sophistry that has done representative democracy a disservice, by indirectly justifying its critics’ opinions regarding its aristocratic nature, be they Rousseau’s followers or realist elitists. In the absence of imperative mandate, the idea that representation is a transfer of sovereign power from the people to the assembly is trivial and wrong.80 However, both Rousseau’s idea and Kelsen’s sarcasm amount to a caricature rather than a description of representative democracy, which is not, nor can it be, rendered in juridical terms of a contract—either as an act of transfer or its opposite, delegation with instructions.81 130

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Rousseau was correct to stress the difference between political and private interests (the general will versus the will of all). Both political representation and contractual or juridical representation are forms of representation of interests, but the nature of those interests is different. In the latter case, the interests are partial; in the former they are general in the sense that they pertain to the citizen body as a whole and to each as a general subject. However, Rousseau made a “fatal error” when he identified the sovereignty of the state with its individual members because he glossed over the fact that the exercise of sovereignty depends on coercive power since it expresses itself in the form of a command or a law, not an agreement.82 The important point is that the difference between political and private representation is reflected in the difference between law and contract. Contract presupposes a horizontal relation (consent, not force) while law presupposes a vertical one (consent and force). The representatives (like the citizens in a direct democracy) have the power to make decisions that are collective in the sense that they apply to all the members of the body politic. On this account, unless all decisions are always unanimous, direct government faces the same problem as representative government.83 As we have seen, this explains the fact that the development of representative government paralleled the dissolution of corporate society. Even Tocqueville, who in Democracy in America had praised the liberal and even civic function of the intermediary bodies, in 1848, as a member of the French National Assembly, criticized the representation of interests in his country and blamed it for the dissolution of the state and the incipient revolution. Like Rousseau, Tocqueville privileged the general interest (“a disinterested feeling of public spirit, on account of political opinions and passions of a public nature”) over partial interests (voting on account of “motives of private friendship” and for “reasons of personal and private interests”) and thus supported political representation over representation of interests.84 As Kelsen pointed out in his discussion of corporate representation, the representation of interests contradicts democracy insofar as it does not allow for equal consideration of all interests (and votes) and thus violates the main premise of majority rule. In order for majority rule not to violate political autonomy, all citizens must be equal before the law (equal consideration of all interests) and have the equal right to determine the politics of the commonwealth and to be heard, not equality of opinion (unanimity) or legislative equality (direct participation).85 In conclusion, since representation functions politically (to make laws) in a collective setting (not in the mind of the sovereign), and 131

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since laws cannot be treated like contractual agreements because they impose their authority on all indiscriminately, not just those who agree with them or those whose ideas are represented in the majority, we must abandon the logic of the contract implied by sovereignty as the will defines it. However, the fact that representation cannot be regulated and checked like a “contract” of delegation does not mean that citizens can only check representatives through elections. Rousseau is right to say that representation cannot be a contract. Yet just because political representation can only exist in the juridical form of a non–legally bounded mandate, some other form of “mandate” is needed to check representatives. That is why it is incorrect to posit a radical dualism between imperative and free mandate if the latter is meant to be both political and legal. As I explained above, the very fact that representatives play an active (legislative) role implies that they are not independent of the electors; it implies political “mandate.” To clarify this point I need to show how political representation is peculiar and why it cannot be understood as an act of mere authorization or as a contract.86 There are at least three reasons why this is the case: 1. Because representatives make laws that all citizens, not only those who elected them, must obey, political mandate means that representatives represent the entire nation, not just the constituency that elected them. This not only means that their mandate is non–contractually based, but that it is based on a flagrant violation of the contractual mandate. It also means that the representative cannot ignore the perspective of the “will of the people” and concentrate only on her relationship with her constituency; both the particular and the general constitute democratic representation.87 2. The juridical mandate makes the representative directly responsible and legally accountable to her client. But the political representative is neither responsible for or legally accountable to those who voted for her, nor obligated by personal relationships. In the first place, political representation and legal (imperative) mandate are mutually exclusive since legal mandate would hinder deliberation in the legislative setting. Although most contemporary scholars of electoral accountability prefer this argument, it is an instrumental argument that assumes a narrow view of deliberation that focuses primarily on the decision-making process within the legislative body. The normative argument is that free mandate allows representatives to make decisions that do not subvert or displace the general nature of the law or transcribe the particular wills they represent directly into the norms of the state, thereby imposing the will of some onto the entire body of citizens. So democratic norms of political liberty and equality actually prohibit legally bound mandate and define 132

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the specificity of political representation. Mansbridge’s maxim “Representation is, and is normatively intended to be, something more than a defective substitute for direct democracy” relies on the fact that representation is not a contract but an original form of political participation.88 3. The juridical representative has only those powers the client grants him. But electors have no legal power to make their instructions compulsory; which means that the currency of political representation is promises (with a moral commitment on the part of the elected and, at most, their prudential calculus in seeking reelection or simply the tempting desire to be popular). The currency of representation is ideological (in the above-sketched meaning) in that it is an interpretative or artificially created similarity between the representative and her electors. The seed of the democratic character of representation germinates from the paradox that although a representative is supposed to deliberate about things that affect all members of the polity, she is supposed to have a sympathetic relation only to a part.

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In substance, a relation of ideological sympathy and communication be-

tween the representative and her electors is necessary precisely because political representation must exclude legal checks and is not a contract. “The criterion of autonomy therefore cannot demand, even as an ideal, a wholly unencumbered legislator, one who acts utterly unswayed by political pressures and partisan loyalties.”90 Thus in democratic politics, representation does not mean “acting in the place of somebody,” but being in a political relation of sympathetic similarity or communication with those in the place of whom the representatives act in the legislature. The assumption of this (idealized) kind of sympathy (which is the foundation of the advocacy aspect of representation) is reflected in the statute that regulates how the deputies vote in the representative assembly. Except in clearly specified cases (which pertain to decrees, not laws), the voting record must be made public. Electors need to know what the representatives do and say and how they vote in the assembly because they need to compare their judgment to their own judgment.

The issue concerning the relationship between the whole and the parts deserves some further reflection. The political representative is required to share her ideas only with her electors, not with the whole nation as a unitary body. Representation is itself a denial of plebiscitarian and populist democracy because in order to acquire the moral and political legitimacy to make laws for all it must articulate pluralism but not superimpose an unreflective unity over an indistinct mass of individuals.91 Representation is a process of unification, not an act of unity. As such, it presupposes a pluralistic society, and moreover a pluralism that is not merely a social given but an idealized or political construction made 133

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by free citizens in their conflicting or sympathetic alliances. “Political process” is the key term. The process of representation puts an end to the sovereign as an ontological collective entity and makes room for sovereignty as an inherently plural unifying process. The representative is a representative of the nation because and insofar as she expresses a part of the nation when she makes claims before the whole nation and in the name of the principles it stands for as if they were consistent with the hypothetical sovereign will. Partisanship (or the ideological sympathy and communication between the representative and her electors) occurs always within and in relation to the imagined general will. The opposite would be civil war. Political partisanship is an articulation of and concurrence with the “idea of reason” that constrains and contains all particular interests that exist in society. Representative democracy is the antithesis of both delegated democracy and en masse types of representative populistic or plebiscitarian democracy that identify the people with the person of the leader. In both of these latter cases the citizenry is conceived as an atomistic assemblage with no intermediary political associations that citizens themselves create to protect their interests and that produce at the same time a sense of commonalty or sympathetic similarity and division among them. Citizens have to see and understand that they have something in common that unifies them. They reflect upon, and therefore create, their common interests; they do not encounter them ready-made, like objects autonomous from people’s awareness, beliefs, and linguistic idealizations. Partial or partisan aggregations such as political groups or parties (ideological representations of the social and political reality) are not optional or accidental in a representative democracy; they constitute the representative process that is not and cannot be a personal relationship like the client-lawyer relationship. Political representation breaks with the logic of homogeneity and identification although it is a process of unity, not fragmentation. This is the reason why the interpretation of sovereignty in terms of judgment and imagined (as if ) general will is pivotal. I have used the idea of representativity to explain the semantic complexity of the institution of representation and its intrinsically political nature. I did this because representation presumes a view and a practice of popular sovereignty that includes forms of participation and unifying actions that are not identifiable with or reducible to the juridical unitary act of ratification or the will (whether direct or electoral). It is therefore accurate to say that representative democracy does not contemplate any real break or dualism between “the man” and “the citizen,” both 134

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of which are in fact porous identities that are in continuous communication and interplay. This mix of formal and informal participation, of authorization and partisanship, strong and soft power, means that representation can open up, rather than obstruct, important avenues of participation and creative actions, ideal and practical. To conclude the comparison between political and judicial judgment, political representation implies a nonindependent relation between electors and the elected, a relation that does not need legal enforcement to be strong and effective. Jeremy Bentham thought that the magistrates’ probity and responsibility lay in public control and the substitution of the people’s eye for the traditional sovereign’s. J. S. Mill extended the immaterial power of public opinion even further and placed his confidence in the indirect oversight that modern citizens can exercise over the work of public officials, both those appointed by election and the bureaucrats selected in national competitions.92 The power of judgment is strong, although indirectly effective.

Common Opinion and the Revolution Although the power and nature of political and judicial judgment are different, the scheme of judgment reflects the structure of hypothetical reasoning in both cases. Judges use the presumption of innocence to test facts and evidence. The presumption that we are citizens of one commonwealth allows us and our representatives to pose and solve problems and make decisions. It allows our dissent and disagreement to play an energetic but not disaggregating function. However, if every time the citizen and the representatives vote they do not presume the criterion of a unanimous opinion as the symbolic “We the People,” the general will ceases to be the premise of an “as if” hypothetical reasoning and becomes something to achieve or the expression of a reality that transcends what exists and is more valuable and real than what actually exists.93 When this happens, public opinion concerning the people as the ultimate sovereign is no longer a working hypothesis guiding judgments on existing issues but becomes an external principle that challenges and questions the legitimacy of the legal order itself. Then the principle of legitimacy migrates outside the legal and institutional order as something to be aimed at, either because it no longer exists (traditionalism) or is not yet in place (utopianism) or because it has failed to answer Rousseau’s “right question,” and counters the actual state of affairs with the ideal (call for legitimacy or antityrannical claim). 135

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When the “ought” (judgment) and the “is” (the will) part company or are so radically disassociated as to appear to define or correspond to two peoples, the former (“ought”) can take the form of an ideal (the good republic) in the name of which the citizens (some or many of them) oppose the latter (“is”), with a degree of intensity that ranges from dissent to civil disobedience or radical revolt. In this case, the “is” either appears to be or acquires the character of pure force, the tyrannical will of the majority, and even if the state still enjoys the power of coercion over all its subjects, the people no longer “feel their supremacy, and consciously treat their rulers as their agents, while the rulers obey a power which they admit to have made and to be able to unmake them—the popular will.”94 If the disassociation between formal and informal sovereignty occurs repeatedly, if a political community is permanently divided on the most important issues in its public common opinion between majority and minority, the latter would probably sooner or later stop seeing the general will as an as if that should guide their judgment no matter what position they occupy within the state institutions (and no matter whether are represented in the assembly). The fracture between cognitive (normative as deontological) and practical (normative as ideal) means that the general will is now indeed a fiction—however not in the sense that a hypothesis is a fiction (necessary to make correct inferences and guide reason) but in the sense that a nonexisting good and desired reality is a fiction. So the problem Rousseau posed—but did not eviscerate—can be rendered as follows: whereas it is logically plausible that the numerical minority is still free and autonomous while obeying laws it does not agree to because both the majority and minority consent on the basic public opinion and judge according to the same hypothetical inferential scheme, if the minority still finds itself repeatedly in the minority or its voice is not given the chance to be heard and its claims advocated, it might start using and seeing the idea of the general will in quite a different way. In the least dramatic scenario, this would be the crisis of representativity, of a fracture within sovereignty between its two faces, will and judgment, wherein the latter stops operating as the communal denominator that backs the legal order. In the most dramatic one, this would be a revolutionary break. A common understanding must exist at the bottom of political life in order for the minority to feel that they are part of the same destiny and have a share in the same general public. The fact that a political system endures despite divisions between majority and minority 136

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means that of the two sovereignties, the informal is the bond that keeps the system alive despite the partisan discords majority rule engenders and that political representation presumes and needs. So it is reasonable to say that sovereignty is not the will as an act of decision or ratification, but more powerful and authoritative than that. The juridical aspect is irrelevant; it is not the formal authorization that explains what Bryce called the “self-conscious” opinion that the people have of themselves as sovereign, the sense of “their supremacy” over their representatives and state apparatuses. This informal sovereignty is not located in a defined place (for instance the deliberative setting) nor is it reducible to a public act regulated by agreed-upon procedures (elections). It exists outside state institutions, yet provides them with the esprit that makes them legitimate in people’s eyes.95 In this respect, the nondemocratic twist Kant gave to Rousseau’s General Will by transforming it into a fictional scheme of judgment operating without the constraint of the People’s physical presence serves the cause of democracy.

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A Nation of Electors: Sieye’s Model of Representative Government American and French revolutionaries coined the terms representative government and representative democracy.1 Although both terms were sometime used synonymously, the more perceptive political leaders were aware of the semantic difference between the two. In this part of the book I shall flesh out a genealogy of both models and map out their fundamental differences. In his seminal work on the history of popular sovereignty in France, Pierre Rosanvallon has argued that the leaders of the French and American revolutions who “invented” the representative system produced two “diametrically opposite” views of representation.2 All agreed on three things modern government was not: monarchical absolutism, the hereditary holding of political power, and direct rule by the people. They did not all agree, however, on what representative government was or should be. Their disagreement took an exceptionally dramatic turn in France because, whereas in America the constitution of representative government coincided with an act of independence and affirmation of sovereignty, in France it was the theater of a bitter conflict over the control of the existing sovereign power (the state), and over the legitimacy, nature, and scope of its delegation. In France, political 138

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representation was born as an object of negotiation between the possessor of the supreme power and its procurators. The radicals saw it as a technical artifice to cope with the size of the state and located the normative foundation of legality in the egalitarian and participatory power of the sovereign people (but de facto its political vanguard). The moderates held a positive philosophic vision of representation: they believed that representative government was valuable in its own right and deemed it “an original and specific form” that was superior to democracy, which they identified with direct rule. The paradox of these “diametrically opposite” approaches was that both prefigured the state-led professionalization of politics and the political impoverishment of citizenship. Rosanvallon sees the symmetry between the Jacobins and the moderates as an example of the failure of the democratic project and the consequence of the unfinished work of revision of Rousseau’s (but actually Bodin’s) conception of sovereignty. As robust evidence a contrario, he refers to the defeated but theoretically challenging attempt of some prominent Girondins, particularly Condorcet, to avoid defining representative democracy in terms of a compromise between contradictory principles such as participation and representation. This “third way” solution was the first serious attempt to think about representative institutions from a democratic perspective.3 Its starting point was a comprehensive redefinition of sovereignty as “demultiplied people” and democracy as a process of deliberation that was diversified both in time and space. The dichotomy between representation as expediency and representation as intrinsically positive is complex but does not fully illuminate the unique nature of the “third way” solution proposed by the democratic theorists of representation. Democratic authors such as Condorcet and Thomas Paine shared the same positive perspective on representation as Sieyes and the Federalists and did not take direct democracy as the norm. Like the moderates, they linked representation to the social transformations brought about by a market economy, although this did not prevent them from searching for a form of representative government that did not build on the polarization between participation and representation, between a depoliticized civil society and a professionalized state politics.4 Finally, although they shared the moderates’ conviction that electors should trust the more enlightened and competent, they made suffrage an equal right of the citizen, not a function of the state, and thus contemplated a more active presence of the citizens in the political process. Despite their equally strong suspicion of factions and the role of the party in representative government, they opened the door to the reflection over the methods and legal means by which 139

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interests and opinions emerging from civil society could contribute in forming the process of the political will of the nation and the control over the work of the representatives. They enlarged the meaning of politics and participation beyond electoral authorization and the act of decision.5

All Human Relations Are Representative Emmanuel-Joseph Sieyes developed the first and most sophisticated philosophy of representation as a phenomenology of all human relations, a form of decision-making that excluded directness and patrimonialism, and finally the “true object of the [French] revolution.”6 This philosophy formed part of the eighteenth-century “discovery” of civil society as a realm of freedom and a model for the design of political institutions. Like his French contemporaries, Sieyes’ main sources of inspiration were the physiocrats, and Turgot in particular, the philosophy of Locke, Montesquieu’s representative “commercial republic,” and Smith’s social theory and the theory of division of labor in particular. Finally, the centrality of the will in politics and the contract as the engine and the form of the social and political machine put Sieyes in the camp of Hobbes and Rousseau and made him approach representation from a juridical and an institutional perspective. As Pasquale Pasquino has written, his personal contribution to the philosophy of representation consisted in combining l’art social and la science constitutionnelle. He saw the latter as a science of political authorization and rational unification of the nation that could be brought about by mimicking the logic of association and contract that made for l’art social.7 “Each man . . . has the innate right to deliberate and to will for himself, to oblige himself, to make contracts with others, and consequently to impose laws on himself.”8 Sieyes’ sociopolitical correspondence paradigm would be very successful in the next two centuries and gain momentum through the works of authors as different as Guizot and Tocqueville, Saint-Simon and Marx. Sieyes made the representative system a conscious superstructure of the economic relations of production and exchange, a reflection of the social order, which was truly foundational of the political order. “In [his] perspective, civilization, division of labor and representation coincided.”9 His ideas are a crossroads where the Schumpeterians and Marxists meet, both as for the theory of the priority of civil society over politics and as for the application of the economic method to the analysis of political behavior. 140

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On the one hand, representation designated indirect doing and selfregulated interdependence between producers and consumers of material and immaterial goods. On the other, it designated a specific political system for appointing politicians who were in charge of drafting a constitution or governing the constituted institutions. Sieyes’ theory that “all is representation in the social order” means first of all that all human relations, private and public, are basically contractual: services provided in exchange for remuneration. Individuals represent one another insofar as they perform activities that reflect others’ needs and expectations, enjoyment and utility. Human actions are all interconnected and every action reflects and is a reflection of the action of others. Representation is “the mother of productive and commercial industry, of liberal arts as well as political progress. In fact, I think it is the same as the social life itself.”10 Sieyes inverted Rousseau’s logic of reconciliation of the social and the political orders. Rousseau, who wanted to make the organization of production and labor functional to the preservation of the well-ordered republic, not the other way around, tried to shelter economic relations from the incumbent risk of commercialism and the split between labor and wealth. Sieyes made the paradigm of exchange into the norm for the creation of legitimate value (“No man ought to enjoy the labor of another without exchange”).11 Rather than corrupting public relations, the market’s indirect way of influencing people’s choices and allocating goods made it a great factor of civilization. It gave recognition and value to labor (the “living force”) and made individuals’ preference the final judge. It embodied the immaterial power of consent, a sanctioning force that persuades without directly coercing. All this dignified human labor and knowledge, both by creating voluntary interdependence among people and by sanctioning as illegitimate all power based on irrational and exogenous forces. Like his contemporaries Kant, Paine, and Condorcet, Sieyes used the word representation synonymously with legitimate government, civilized social relations, and liberty because it coincided with the end of patrimonialism in politics.

Interest and Competence as Unifying Factors In a 1789 pamphlet which Manin rightly considers “one of the founding texts of modern representative government,” Sieyes wrote: “Clearly the general interest is nothing if it is not the interest of someone; it is the particular interest which is common to the greatest number of voters.”12 141

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As Locke had argued in his Second Treatise on Government, the individual interest is the common denominator that can be used as a representable unit of consent. In both politics and the market, the criterion of measurement is (and needs to be) quantifiable and impartial: like the consumer, the citizen as elector is the identical base of consent and representation. Like exchange, election allows “public opinion to flow freely” and allocates value according to clear parameters that are open to public scrutiny and not arbitrary.13 Representation thus breaks the monopoly held by exogenous factors like birth, tradition, or religion over the meaning and the value of goods and professions. For all these reasons, Sieyes believed that representative government was not an expedient or second best, but a model of political rationality and legitimacy similar in kind to the one analyzed by Adam Smith. “To allow oneself to be represented is the sole source of civil prosperity.”14 Smith made a fictional use of reason in Kant’s transcendental schematism sense and created the homo oeconomicus by abstracting from, and neglecting the complexity of, the motives, influences, and circumstances that constitute actual human activity. And though he did not transform fiction into a comprehensive doctrine, he did however provide social and political analysts with two cognitive schemes that could be expanded to other contexts: money as the scale to measure preferences and evaluate the rationality of decisions, and labor as a typology representative of the diverse activities individuals perform for reciprocal utility.15 Sieyes used these two schemes to describe remuneration of representative activities in politics and to divest travail of all operational specificity so as to make it into a generic power of production of exchangeable goods—material, economic, and otherwise.16 Each domain had its own representative labor, which was definable in its retribution, functions, and goals. Politics was a profession like any other, endowed with its own specific skills and ends, and furthermore remunerable with electors’ votes. “The common interest, the betterment of the social state: we should make government into a particular profession.”17 This view of representative government, though it has become part of our vocabulary, is not without its flaws. When Smith’s logic is applied to political functions, the result is political inequality, not just differentiation and coordination, because in the domain of politics “differentiation” of functions does not lead merely to “division of labor within the same expertise” but “the creation of law as well”; it leads to the implementation of coercive norms, not a voluntary transaction among free and equal agents. In the context of politics, the concept of “function” has inegalitarian implications and creates “separation” among, and hierarchy 142

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within, the “profession” of the electors and that of the elected.18 As Sieyes himself recognized, political representatives perform a “profession particuli`ere,” not just one profession among others, because their status is superior to that of any other profession in that it entails moral qualities like “honor” or “virtue” that are not acquired by technical training alone, and a degree of responsibility and competence that cannot be improvised. Therefore, rather than merely a competition strategy, election is a means of creating “two peoples”—“the producers” and “the auxiliaries”: a class of citizens who make the laws for all and a class of citizens who obey them. Just as the consumer does not need to fabricate the things he wants to enjoy but can buy them from somebody who “had done for him,” so the citizen-elector does not need to practice the whole spectrum of political activity in order to enjoy its results.19 The problem is that the openness of the competition is here based on the tacit assumption that only a few people will enter the electoral race because only a few people can manage political affairs. Montesquieu’s happy expression “commercial republic” found its philosopher in Sieyes: competition fulfilled the promise of the old republicanism without its inconvenience, since it made liberty secure without anchoring it in militant virtue and the simultaneous political presence of the multitude. As we read in The Federalist Papers, representation would be in the best interest of the nation because it would allow the people to be governed by individuals who were more “competent” than themselves.20 Contra Rousseau, the same force that produced rational (coordinated) behavior also secured freedom.21 The best way to enjoy the fruit of political labor (the legal protection of individual freedom) was to separate the work of citizen-electors from that of elected citizens. The price was the violation of political equality: this, as Paine understood remarkably well, is the object of disagreement between the theorists of representative government. Sieyes’ politics was a realm of competence, not equality. It was a “large political machine” managed by the active professional few with the confidence of and for the good of the politically passive, although socioeconomically active, many.22 The debacle of Jacobin democracy and Napoleon’s Caesarism (to the establishment of which Sieyes tried to contribute) strengthened the political credentials of this elitist view of representative government. Constant’s 1819 formula was as solemn as a historical verdict and as concise as a political maxim: “The representative system is nothing but an organization by means of which a nation charges a few individuals to do what it cannot or does not wish to do herself.”23 Contemporary theory of representative government as 143

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the electoral selection of the political elite by the people descends from this view.

Exchange versus Barter: Democracy Is Primitivism The theory of the separation and specialization of political functions was Sieyes’ solution of Rousseau’s paradox that communication among citizens is an obstacle to the general interest. As we saw in chapter 2, in Rousseau’s scheme of direct rule, the rationality of political decisions and the unity of the body politic could be better preserved if citizens did not associate and interact. But in Sieyes’ indirect scheme, interdependence and association are consubstantial with rationality and unity. When everybody does everything the result is individualistic isolation and idiotic autonomy or, alternatively, the ever-present risk of tyranny. Precisely because “powers are never limited” and expansion is the nature of the will as will is to power, division of labor is essential to liberty.24 In a move that radically reversed the classical republican logic, Sieyes made interdependence, not self-sufficiency, the source of freedom.25 Applied to politics, Smith’s scheme changed the meaning of political liberty, and republican liberty in particular. As The Spirit of the Laws had predicted, breaking the principle of the identity between the rulers and the ruled was an improvement rather than a necessary expedient because it created a new field of expertise that benefited everybody. While Rousseau thought that the artisan and the farmer epitomized the model of autonomy and a society of sovereign-like producers, Sieyes believed that selfsufficiency was a bad model of social organization because it obstructed communication.26 Liberty “often consists less in doing than in getting done”: this is just as true for political liberty as for individual liberty.27 In book 22, chapters 1 and 2, of The Spirit of the Laws, Montesquieu advanced a striking comparison between peoples who bartered and peoples who used money as a medium of exchange. This comparison prefigured Sieyes’ distinction between democracy and representative government. Peoples who have no need for commerce, says The Spirit of the Laws, are peoples who have few commodities to enjoy and little chance to dedicate themselves to the refinement of their life and morals. They are and remain “savage” and uncivilized, just like the citizens in Sieyes’ “pure” democracy. “Pure” democracy means “raw” (brute) democracy because it resembles raw materials before human labor transforms and refines them. Democracy is direct rule, but also an inferior or less perfect way of

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ruling. It is a system that fits societies that are not yet “civilized” because unfamiliar with reflective activities and the work ethic, still attracted by mere “pleasant pastimes” and not appreciative of the abundance of artificial goods created by industry and commerce.28 Indirect participation solved the problem of communication in large territories in a way face-to-face relations could not do, while freeing society from chance, irrationality, and instability. Sieyes introduced to politics the principle Paine later used to claim, against Sieyes, that representation perfected direct democracy rather than supplanted it, because it made democracy universalizable and adaptable to complex societies, rather than obsolete. Sieyes turned the logic of a centuries-old tradition of political thought upside-down. If coordinated dependence rather than autonomous as self-sufficient action was the mark of freedom, then representative government was the norm and direct democracy a second best. A criterion of equivalence for the adjudication of exchange value, voting was the neutral medium that allowed otherwise incommensurable things to be compared because it could “easily be reduced to the same grade.” In that money and votes, division of labor and representation were self-binding conditions of voluntary behavior, they acted as agents of stability, dynamism, and liberty.29 In sum, representation perfects the way individuals enjoy and practice political liberty; it is a sign of progress, not a second best.30 Democracy is “much less appropriate for the needs of society, much less conducive to the objects of political union, than the representative constitution: such is the second legitimate form of government.”31 However, things are not quite so simple because Sieyes did not actually reject direct democracy entirely but transferred it to the few. He relocated direct democracy rather than eliminating it. He made deliberation and voting the specialized work of the members of the representative assembly. So it would be incorrect to infer that he dismissed the value and practice of direct decision-making as a unique property of “raw” democracy. It would be more correct to say that Sieyes, like contemporary liberal theorists of representative government, made direct democracy an exclusive function of the elected, ordinary citizens having “better things to do.”32 The paradox of a philosophy that claims that all human relations are representative is that it must acknowledge that there is a moment in which somebody must make decisions directly, a moment in which the chain of representation must end. In a representative government, decisions are not made by the representatives of the representatives, and indirectness is of course not absolute.

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The Currency of Electoral Consent Sieyes’ theory of representation rests on a dichotomous meaning of freedom that shares in the dual nature of what is called today negative and positive liberty (Sieyes himself spoke of “libert´e n´egative”)33—freedom from direct political engagement in the case of the electors and freedom to practice politics in the strong sense in the case of the elected. Election creates and separates the domains of individual liberty and political liberty by defining their respective recipients/practitioners as well as their reciprocal independence. But it also creates a dualism within the very domain of political liberty, or between a minimal and in theory equally distributed liberty (the right to vote for) and a maximum and unequally distributed one (legislative power or autonomy in Rousseau’s sense). This distinction is the source of the contemporary model and theory of representative government. Free mandate is the crucial alchemic factor that, like freedom of choice in the market, allows elections to adjudicate values among different candidates and stimulates the candidates to compete for citizens’ consent. In both cases, the actors must enjoy complete freedom of expression or bargaining in order “to know their respective views,” to profit from them, to compare them and transact, to modify their own views, and finally to make a reasonable decision.34 As mentioned, an essential condition for both the economic and the political systems of exchange is that the criterion of evaluation be independent both from the content of the object to be evaluated and from the will of the actors. The uniqueness of money is that it creates a universal system of reflection within which things can mirror one another and be mirrored by money: “on the one hand, the silver indeed represents all things, and on the other, all things indeed represent silver, and they are signs of one another.”35 However, independence from the things it measures does not mean that the value money stands for is arbitrary. Although money is conventional and artificial, Montesquieu insisted, unless currencies have representativity, they are not currencies in the true sense of the word. What distinguishes currency from a counterfeit is precisely its capability of not misrepresenting things. Its meaning (the value of currency, in Montesquieu’s description) cannot be manipulated at will—market exchange “happens only in a moderate government” because “tyranny and distrust make everyone bury his silver” rather than exchange it for commodities. This means that fiction is not synonymous with deceit and falsity, and does not entail arbitrariness or discretion. Currencies function as a sign of equivalence because and insofar as they 146

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are based on some correspondences or a chain of sympathetic references to the things they “represent.”36 Transferring Montesquieu’s reasoning from money to politics we can say that counting votes is sufficient to elect a candidate but not sufficient to make the elected candidate a representative, or to make him fulfill his representative function. The legitimating factor of exchange both in the system of representative government and the market system is consent; and consent presumes and refers to a symbolic correspondence. This aspect was well understood by Condorcet who, as we shall see, felt the need to articulate the category of despotism so as to include within it the despotism of elected representatives as the effect of the violation of that which makes representation politically legitimate to the eye of the people, that it to say representativity. The problem with Sieyes’ theory of government is that it confined consent exclusively to election as an authorizing system of appointing experts. Representativity had no place in his theory of electoral consent: Liberty always consists in procuring the greatest product with the least cost, and in consequence in getting something done so the result will be less hardship and more enjoyment. But I say getting things done and not simply letting things happen. Ignorant servitude is letting things happen; electionism or enlightened representationism is getting things done. Getting things done means commissioning, it means choosing the more expert, it is not commanding what one should do, for in that case what would be the point of the chosen experts being expert, and how could a prior command permit deliberation between the actors in the convention? [Representative government] consists therefore solely in choosing experts, and changing them often so that if they go wrong their successors, elected precisely by those who complain of the error and can see things better, will be more capable of conciliating interests.37

I will return to the issue of expertise at the end of this chapter, after having explored the foundations of Sieyes’ electoral democracy. Disassociating the citizen from the elector, and in fact translating the classical republican category of citizenship into the right “to vote for,” was the centerpiece (and masterpiece) of Sieyes’ philosophy of representation. It was also a reductive way of interpreting representation.

The Metamorphosis of the Citizen into the Elector In The Jewish Question, Karl Marx employed the dialectics between the bourgeois and the citizen to explain the formalism and abstract character of political liberty in postrevolutionary constitutionalism.38 By a similar 147

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logic, Carr´e de Malberg explained the birth of representative government in revolutionary France with the metamorphosis of the political category of the people into the legalistic category of the nation of electors as it was delineated by Sieyes.39 Following these leads, I shall here explore the dialectics between the citizen and the elector that has characterized parliamentary regimes and propose seeing Sieyes’ socioeconomic correspondence paradigm as a complex labor of abstraction performed within the political dimension (of citizenship) itself. What interests me is how the liberal theory and practice of representation managed to empty citizenship of its political character and to create the identity of the elector. By building on Montesquieu’s lead that money “represents” things insofar as they are autonomous from their concreteness, I hope to illuminate Sieyes’ “logic of substitution” of Rousseau’s sovereign people with the representative assembly and moreover clarify the difference between representative government and representative democracy.40 Money designates the fictional and artificial condition of equivalence by which the entire system of goods and labor is made into a representative, reflexive, and symbolic system.41 The market makes things interchangeable by making them equal in relation to a “third,” or a quantifiable, neutral unit of measurement. In order to play the representative game, things need to float in a one-dimensional space (they need to be seen only as a given quantity of money; not as things but as commodities), with the understanding that outside it their equivalence would be impossible and in fact unimaginable. Money “metamorphoses” things. It “reproduces” things “under a new form.”42 If we apply this logic to representation (as Sieyes did) we could say, paraphrasing Marx’s famous rendering of exchange value, that, thanks to the conventional value-unit of the vote, candidate ϕ stands for x workers, y entrepreneurs, z women, and so on.43 The conventional or symbolic reality created by election descends from the legal (normative or conventional) equality of those who hold the right to vote, or the electors. In Sieyes’ words, “the most perfect simplicity” embodied in the vote corresponds to the abstract equality of the political right which “imprints in the citizen the representable quality” that makes him an elector.44 The legal sameness of the electors is what makes representation “the mode of expression” of citizens who are concretely different in their existential specificity (i.e., workers, entrepreneurs, women, etc.) and who are in fact recipients of civil rights, as we shall see shortly. Political representation (that is, the act of subsuming different citizens under one elected officer, and the entire country under the legislative assembly) is possible only within the conventional universe of electors 148

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and elections.45 An example that can clarify the interpretation I am proposing is the care Sieyes took to narrow the function of the “primary assemblies” in electoral districts (the territorial distributions of electors whose task was to compile lists of eligible voters and candidates, and finally to vote for representatives) to “the election of the representatives.”46 Election made the representative into a unifying signifier that stood for a legal unit (the elector) and was a medium that unified the nation above and beyond geographical and social differences. To play this role, the primary assemblies must be only electoral, not deliberative and not permanent.47 As I shall explain in the last chapter, the most important difference between Sieyes and Condorcet pertained to the fact that the latter advocated assemblies of citizens and electors and kept them active always, not only to perform elections.

Passive and Active Freedom The dialectics of the citizen and the elector can yield a theoretically ambitious result because it shows us the consistency of Sieyes’ distinction between the civil rights of the citizen (“les droits civils”) and the political rights of the elector (“les droits politiques”) with the main tenets of his interpretation of representative government: namely, his identification of primary assemblies with electoral assemblies and finally his substitution of the people with the nation as the repository of the sovereign will.48 The nation of electors is a fictional and symbolic reality. Yet it is the only actual reality. Let us try to elucidate this constellation of concepts. Through the arithmetical unit of the vote, the electors who vote for a candidate enter simultaneously into a pluriverse relation of reflection—to their representatives, to the members of their constituency, to all the electors in the nation, and to the legislative body.49 This “mysterious” process of multilayered mediation depends on the artificial character of those various political relations and the actors holding them. “If we make abstraction from . . . the material elements and shapes that make the product a usevalue; we no longer see in it a table, a house, yarn, or any other useful thing. Its existence as a material thing is just out of sight. . . . There is nothing left but what is common to them all; all are reduced to one and the same sort of labour, human labour in the abstract.”50 It is tempting to adapt these words of Marx to Sieyes’ electoral democracy: Sieyes understood very well that election as an act of will could play the same function as the ratifying power of Bodin’s king and Rousseau’s sovereign people. 149

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The key, within a representative context, to inferring unity from the will of its components is Sieyes’ distinction between civil rights and political rights, where the former was associated with the “actual” nation (of individuals) and the latter with the “symbolic” one (of the state). The nation was the grand container of all the individuals as concrete beings: of the “natural and civil rights of citizens” as “passive rights” that all enjoyed. The meaning of the word “citizen” is not political here, but civil: “all have the right to be protected in their person, property, and liberty, etc., but not all have the right to have an active part in the formation of public powers; not all are active citizens.”51 In the context of the nation, the word “citizen” played the same role as the word “man” in the context of nature. Indeed, according to Sieyes, the nation was a prepolitical reality and the origin of legitimacy: “Its [a nation’s] will is always legal” because nothing can limit it besides its own will. The nation is “the law itself. Before and above it there is nothing but the natural right.”52 Before the nation exists, there are single, not associated individuals. The nation is the first (chronologically and hierarchically) form of association between individuals. In the context of the nation, natural or civil rights engender an obligation: treating one another according to “a genuine obligation” rather than as objects of domination. The nation is the unity of private or natural individuals as moral recipients of rights protected by the law.53 In Bodin’s language, it is the ensemble of the governed or those subjected to the law; but in Locke’s language, it is also the natural society prior to the body politic under which individuals unite “in order to protect their rights from the designs of the wicked.”54 This explains the adjective passive that Sieyes used to define civil rights (and the citizen versus the elector). “Passivity” is relative to what the citizens are required to do in order to enjoy their civil rights: they are not asked to participate as active citizens (or electors) but simply to obey the law. In fact, while the nation is less inclusive than nature (its territory, after all, does not coincide with the globe), it is more inclusive than the political nation or the political body (not all of those who are subjected to the laws enjoy the right to vote). However, this passivity also implies that the nation is unable by itself to protect the civil rights of its citizens. Its unity has no political form (or voice) until those who have civil rights (all the members of the nation, or the citizens) enjoy the right to vote for their representatives (become electors). This explains why Sieyes thought political rights, while crucial for the existence of the government, do not need to be as universal and inclusive as natural and civil rights. The “active” character of political 150

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rights meant that they did not need to be universally distributed and enjoyed. Political rights were active in that they were an artificial function instituted to give birth to the political nation or an organized system of coordinated and specialized functions (the government). The goal of political rights was the well-being of the state and in this sense the protection of individual (civil) rights. Therefore, they were privileges more than rights. The right to vote was a power attached to the qualities (competence) of the member of the political society versus those of the human being.55 Sieyes was rephrasing the distinction between moral autonomy and political autonomy while shaping the argument of suffrage as a function that would dominate the theory of parliamentary government until the democratic transformation in the twentieth century. As we shall see, this was another crucial source of Sieyes’ disagreement with Paine and Condorcet about the relation between representative government and the republic (or democracy)— a theoretically relevant split since it concerned the nature of political rights and the role of representation. The distinction between “passive” and “active rights” corresponded to what Burke called “virtual” representation. Electors were representatives of the citizens who were the actual components of the nation. Nonelectors participated indirectly in the political life of their country through the voice of the electors who, in exercising their active rights, also guarded the passive rights of all. Not all citizens needed to do the same things (voting) to enjoy the same (passive or civil) rights. The theory of virtual representation or passive/active citizenship presumes a prepolitical belonging to the same nation within which all members are ethically and morally equal even if they are not individually equal in the functions they can perform or in their abilities. Historically, this argument has been used to justify political exclusion in the name of national interest or social utility. This was the case with James Mill’s argument against female suffrage as a condition for the extension of male suffrage: women did not need to be politically active to have their rights protected; men could do it on their behalf. However, it is possible to transcend the exclusionary implications of the passive/active citizenship divide and read the theory of virtual representation as a reminder of the distance that separates the norm of democracy from its reality. Even disregarding the case of resident aliens, the democratic state is never fully inclusive of its own legal citizens, as the limitations on suffrage for reasons of age, mental health, and criminal behavior demonstrate. The residue of non-active-citizenship never disappears entirely in democratic societies, although the criteria for it change, and this change 151

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can be taken as a measure of democratization.56 Each demos at any given time and generation devises criteria of exclusion to limit qualification for voting and citizenship. Age is the least exogenous criterion; gender, skin color, cultural and ethnical identities and religious beliefs, the most. Seen from the normative perspective of equal political opportunity, the history of universal suffrage is never entirely concluded, which means that it is not reducible to the function of selecting representatives and appointing magistrates. Indeed, to read the history of universal suffrage as a history of criticism and the removal of exogenous factors of political exclusion implies giving political equality not only the function of creating a political class but also that of exercising the power to know, judge, and influence all public issues and the actions performed by the political class. The way suffrage is interpreted determines and qualifies the way representation is conceived. It is nonetheless clear that if those excluded from the right to suffrage did not historically feel satisfied with virtual representation, it was because voting does not consist merely in electing lawmakers but also contributes to giving representatives their identity (representativity) and to making the legal system to which citizens are subjected. Sieyes believed voting was inherently and exclusively associated with the formation of state institutions, rather than being a right; a way of adjudicating confidence rather than sending representatives to the assembly. So although his starting point was egalitarian—he saw election as a political race among equal electors (he intentionally defined the nation in direct opposition to privilege)—he did not think that political power had anything to do with equality. If anything, it was a breach of the unity of the nation and equality within the multitude of the citizens to accommodate the institution of an artificial hierarchy of skills. Thus, although they were equal as legal and private individuals, his citizens were not equal when judged from the point of view of their service to the public, and politics was a service, not a right. Sieyes’ representation was not just a medium for action in large states, but an active agency of power. This raises the issue of the identity and the function of the sovereign, or the tension between legal equality and political inequality.

The Symbolic Sovereignty of the Nation Scholars have detected a paradox in Sieyes’ theory of government because, while his purpose in constructing it was to end anarchy and achieve stability, “in repudiating claims for a traditional constitution, 152

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Siey`es had also undermined the capacity of any constitutional arrangement to withstand the subversive effects of the principle of national sovereignty.”57 Undoubtedly, the theory that all power is representative had a desacralizing function, as the American Federalists showed.58 Yet it also had destabilizing implications, because while it made state powers derivative it placed them on the top of a volcanic “will of the nation” that was extrainstitutional, and prior to the rational articulation of political language and legality (the “will [of the nation is] always legal”). The paradox and geniality of Sieyes’ theory of sovereignty consisted in embodying a Rousseauian strategy to overcome the “dream” of democracy altogether, not merely to “reconcile” democracy with representation.59 However, the idea that all power is representative and derivative can prefigure a different scenario, particularly if this idea is analyzed alongside Sieyes’ move from the sovereignty of the people to the sovereignty of the nation. It can be read as saying that representative institutions are the only political voice of the nation, which he saw, as we just said, as a collection of private wills (civil rights bearers), prepolitical in nature and thus lacking any perspective of the common interest. “We should conceive nations as individuals outside their social environment, or, as we used to say, in the state of nature,” since they are free “to impose laws on [themselves]” and act according to their will.60 The nation is prior to the (institutional) form, just as a substance in Descartes’ metaphysics is prior to its qualities. The problem is that it cannot act or will in the absence of some given forms, which are therefore consubstantial with its existence although ontologically exogenous to it and, in theory, only operational. So while Sieyes wrote that the constitution of a political body or government cannot exist without the nation, he also argued that the nation could do nothing (it is mute) without a constituted government that implemented (and limited) its will. L’art social was the paradigm of the constitutional art: creating the political order was “the art of extracting all possible goods from the society,” which is “the primary and most important art.”61 It consisted in limiting power, all kinds of power. So although the nation could desire whatever it pleased, its will had to be limited if it were to be actualized.62 Outside institutions (that is, outside the constituted power), politics is not even thinkable by Sieyes’ parameters. In this respect, he “went far beyond the more conventionally Rousseauian view of representative government as, in essence, a pis aller—an unavoidable alternative to democracy. . . . In his conception, the unitary character of the general will necessarily implied not merely that the latter could only be expressed in a unitary national assembly, but that it could not even be considered to exist outside that 153

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assembly.”63 Sieyes’ dialectics of the will and the functions anticipated the logic of the “iron law of oligarchy”: the nation is a kind of sovereign that can only be and only do what its legal intermediaries make it be and do.64 His theory of sovereignty was framed in the same language as Rousseau’s. Yet the nation’s greatness was the reason for its powerlessness, as it were, because it did not have any actuating power of its own and, much like Hobbes’ sovereign, could only exist through the state—that is, through its authorized magistrates or commettants. “To be sure, individual wills are always the origin of it [political power], and they form its essential elements; but considered separately their power is nil. It resides only in the whole.”65 So in the end, it seems that the authorizing power did not come from the nation—which cannot think in terms of general will anyway— but from the political nation, or the electors and the institutions they created. Election was foundational; it was not the will of the nation: the representatives of the National Assembly “have the whole power” of the Nation.66 Sieyes’ transformation of the people into the nation prefigured Hegel’s statist conversion of Rousseau’s sovereignty; it consisted in the creation of a “souverainet´e e´ tatique . . . embedded within the nation itself.”67 The representative system created the state as well as the (sovereign) nation. As lamented by Jacques Pierre Brissot, despite his famous distinction between constituting power and constituted power, Sieyes displaced the former because he ascribed to representatives (although ad hoc elected) the task of both framing and voting on the constitution, in this way ensuring a priori that the citizens would not express their views in public debates and assemblies nor, above all, through a direct approval by referendum. In the foundational act as well ordinary politics, Sieyes’ citizens were and could not be other than electors; their voice was always and only the voice of the representatives, even when the representatives acted as mere redactors of the sovereign nation’s will and exercised their function within a convention elected only with the aim of writing a constitution.68 We can thus see that a subtle but deep metamorphosis takes place when the focus switches from the citizens to the electors. The citizenelector is a silent atom much like the citizens in Rousseau’s direct system, but now he has lost his political identity entirely: his silent vote is a public admission of his political impotence. This makes representativity a noncomponent of representation. The language of contract Sieyes adapted to political representation was consistent with political minimalism: sovereignty was a “property” of the nation and the 154

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representatives were its “procurators.”69 Yet it is a strange sort of procurator who knows the will of the community he is elected to represent without consulting it. How can procuration even exist if the principal is not supposed to know her own will apart from that of her procurator? And what kind of legitimizing actor is the elector if she herself is a legal creation of the state she is supposed to legitimate with her vote? “The function of this ideology is to conceal the real situation, to maintain the illusion that the legislator is the people, in spite of the fact that, in reality, the function of the people—or, more correctly formulated, of the electorate—is limited to the creation of the legislative organ.”70 In the end, thus, Sieyes’ National Assembly was the only nation. To paraphrase Marx, a fictio juris became the actual sovereign. The right to vote for representatives served to place the political order entirely within the hands of the representatives, although they “do not exercise [their will] by their own rights” but “only” by “commission.”71

The Impolitical Category of Competence Sieyes’ theory of government shows that confidence, not election per se, is the factor that gives representative government an undemocratic character. The medium of confidence enables elections to initiate the process whose starting point is the “general will” in potentia and whose endpoint is the will as it is articulated by the legislative assembly (the law). The idea of confidence inheres in a nonpolitical view of representation; it entails a stylized person-to-person relationship between the elector and the candidate, and leads to the identification of election with an act of elitist authorization. Sieyes used the competence-confidence nexus to achieve two outcomes. First, he used it to separate the elected from the electors within a context of legal equality. Confidence, or free mandate, prefigured what the American founders called a “natural aristocracy.” Natural aristocracy was radically antithetical to the old-regime type of aristocracy because it entailed precisely what the latter excluded: impartiality rather than corporate interests, and rationality as a criterion of political judgment rather than prejudgmental loyalties. The premise of confidence was that all the candidates shared the same potential as the electors (thus all electors could also be eligible), although to different degrees and with different specializations. It resulted from a race and a comparative judgment, and was essentially personal and individual, exactly like the right to vote. The “natural aristocracy” was an elite, but a competitive and 155

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competing elite. Second, Sieyes employed the competence-confidence nexus in order to transfer to the elected the power that Rousseau had given to the sovereign citizens, but without subjecting the elected to the dictate of the electors.72 It could be said that he embedded Rousseau’s rule of impartiality and unity of the will into a Burkean representative context. As we have seen, his appeal to the people was always an appeal to authorized commettants.73 The introduction of confidence into the space of politics configures a definition of the elite that is clearly impolitical in character and that actually contradicts the principle of political representation. As for the latter problem, the issue of confidence contains a Platonic vice that conflicts with the idea of elected representation, since if election is an act of confidence-giving, it is unclear what a representative is supposed to represent, and why he should be seen as a representative. If that is the case, representation does not involve any relation to society and election is simply a means of appointing political officials. Judged from the point of view of the principles of democratic representation that I outlined in the first chapter (representativity and advocacy), the pouvoir commettant gives birth to a responsible and limited government, yet not to a representative government. The fact is that once representation is robbed of representativity and advocacy, the very egalitarian character of election is jeopardized and the meaning of election itself twisted because confidence denies that elections are an act of reckoning and judgment: a person’s degree of professional competence can only be judged by her equals or superiors (the elected are supposed to be more skilled, or e´ clair´es, than their electors). Even though it defied old-regime aristocracy, confidence seemed to entail “a temporary oligarchy,” rather than an elective political class.74 This discloses the aporia of free mandate as confidence. The representative’s autonomy from the represented poses serious problems for representation if it is not qualified and not linked to the idea of representativity. The argument that sees free mandate as indispensable if collective settings are to make decisions is instrumental since it focuses on the process that occurs in the collective deliberative setting or inside the institutions. However, it does not pay attention to or illuminate the relation between the collective deliberative setting (for instance the legislative assembly) and the outside society, and does not tell us much about what qualifies political representation. “In systems based on both deliberation and representation, normative questions are not limited to the condition for enhanced deliberation.”75 The Supreme Court is a deliberative setting with absolutely free mandate but it is not 156

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a political representative body in the way the legislative assembly is in a representative government. As we have seen in analyzing Rousseau’s distinction between delegation and representation, a truly free mandate may perhaps allow the representatives to create the general will, but it does not make them political representatives. The claim for free mandate presumes the inscription of representation within the logic of contract in the sense that it is defined as a negation of the dependency clause that characterizes the private contract of representation. To recall one of the basic arguments of chapters 1 and 3, political representation must not be confused with juridical representation since the former demands the withdrawal of the legal obligation that binds the agent to the desires of his principal. However, this withdrawal does not mean that there is no mandate or obligation whatsoever.76 The withdrawal of any and all obligation is just as much a denial of representation as the imposition of a legal binding. The institution of representation feeds on the following paradox: at the very moment legal obligation is voided, the obligation resurfaces in a different form as political obligation. Political obligation defines the representativity of representation. In this sense, I have argued that the contrast between imperative and free mandate is misleading when it is constructed in relation and in contrast to a particular normative context—the juridical principal/agent contract—which is completely different from political representation. A political theory of representation requires a political notion of obligation or mandate, something unique and impossible to understand from within the logic of principal/agent. This brings me directly to the second problem I mentioned above, namely the impolitical character of confidence that is implied in the identification of the election with the selection of a superior class of political professionals. The notion of confidence, Patrice Gueniffey has observed, is vague because it is not associated with the specific object (representation) in relation to which is claimed.77 Confidence points directly to the qualities of the person who seeks it. Moreover, it appeals to qualities that only the selected person is supposed to have. In addition, it links elections to a judgment of desert, merit, and/or a kind of competence that, while disassociated from inherited privileges, is not in fact meant to be distributed equally among the citizens. For this reason, confidence makes issues of control and accountability problematic and in fact logically inappropriate. To give confidence, Burke wrote in the same years as Sieyes, means to acknowledge that the elected have the responsibility (because they have the competence) to decide what is in the best interest of their 157

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electors without the electors having a say. “Since they [the representatives] are the sole depositories of the general will, they have no need to consult their commettants on a dissent that does not in fact exist.”78 Sieyes built on the rationale of confidence as defined by Montesquieu, who derived the idea of confidence from the unproven assumption that the citizens could judge neither on issues nor their candidates’ competence to deal with those issues, but could at most recognize the best candidates. The paradox of this prejudicial assumption was that the electors, incompetent as they were, could see the invisible (moral and intellectual qualities and the candidate’s character) but could not see the visible (the issues to be decided and thus the very candidates’ deeds). Confidence was a trust based on ignorance. It implied the act of putting oneself in the hands of experts. We can thus argue that confidence depoliticizes the character of judgment in electoral competitions because it diverts the electoral choice from political opinions to the personal qualities of the candidate. Sieyes’ market analogy is no use here, since just as it is difficult for the buyer to discern and check the equivalence between the quality of the product and its exchange value, it is also difficult for electors to detect whether there is any correspondence between their vote and the candidate’s qualities. The fact is that, despite Sieyes’ attempt to translate political competition into the language of economic competition, elections do not simply arbitrate among competing views. This distinguishes elections from the recruitment of experts and is essentially at odds with the language of competence, since majority rule (counting votes), not a proficiency test, decides the “value” of the candidates anyway. The claim that election and representation are a denial of democracy neglects the fact that it is democracy that shapes the character of representation and election (competence entails co-optation, not election). Yet the application of the category of confidence to politics brings us to the conclusion that electors make value judgments comparing the qualities of one person to another, or even to themselves. However, despite their conscious attempt to make election a means to ensure the rule of competence, the leaders of the eighteenth-century revolutions initiated a system that would debunk any aristocratic form of politics, even the imprecise notion of competence. Tocqueville’s complaint about the fatal mediocrity democratic competition brings to politics can be taken as an implicit acknowledgment that elections are indeed a democratic method of selection if practiced within a representative system of government that is based on civil rights and political rights (and the right to vote in particular).79 This is so because within a 158

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representative government elections are the outcome of a political judgment, one that does not essentially concern persons as private beings, but persons as recipients or “representatives” of opinions that also belong to the electors and exist and operate in society. As I have argued in previous chapters, electoral competition has a substantial and unavoidably ideological character because it points to the future or projects into an imaginable future (defined by the electoral periodicity) ideas that actual citizens develop and shape in their everyday lives.80 Ideas or ideological visions designate the work of political judgment citizens perform in the act of voting. While citizens choose a candidate, they select, through her, a view, a program, a course of politics, a proposal. Voting for political representatives is not the same as voting for a sheriff or a school counselor because the object of voting is not one task or specific function and because the function performed by the elected is collective, not individual. We give lawmaking candidates identity and give their competence political meaning insofar as this makes our choice in voting for that particular candidate, and in fact her “competence,” interesting to us and also an object of our evaluation and judgment. The “merit” I judge in the candidate I choose is relative to her opinions, not unqualified; in this sense it does not refer to qualities that are existentially unique to her or personal stricto sensu. To reverse Sieyes’ thinking, we do not just let ourselves be represented; we participate in the creation of representation (the represented as well as the representatives). Reference to competence in political competition is ambiguous. If by competence we mean a specific skill, then election is a very poor method of selection. In 1789, Jacques Pierre Brissot pointed to this problem when he proposed a double-turn electoral system: if the aim is to select the best in terms of talents and virtue, he reasoned, then elections per se are a poor method because ordinary citizens are perhaps able to recognize the “plus e´ clair´es” or “honorable” but not all of them could adequately individuate the more competent. To judge on competence, similarity of knowledge or expertise is essential (hence Brissot’s proposal to make citizens vote for electors rather than representatives directly).81 To be sure, none of the theorists of representative government who were Sieyes’ contemporaries anchored representation in ideology; actually, all of them associated it directly with rationality in contrast to prejudice and partial interests. The eighteenth-century creators of representative government—moderate as well as democratic—feared the esprit de parti as the specter of social fragmentation and old-regime inequality.82 Except for rare exceptions, the most notable being James Madison, they 159

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did not make any relevant distinction between factions and parties, and thought of them as a pestilential misfortune—a source of irrationality, divisions, conflict, and even civil war. Hence they looked for an impartial criterion of evaluation in electoral competition and tried to keep “‘merit’ independent of opinions.”83 They thought that the moral and intellectual qualities of virtuous or competent leaders would make it possible to transcend the esprit de parti and break with any form of mandate, legal as well as political. They expected competence and confidence to achieve the same goal as Rousseau: making reason and rationality the norm of politics. Like Madison and Burke, Sieyes thought electors should reward the type of confidence that in republican literature was a mixture of civic attributes that have been traditionally ascribed to the good politician: virtue, honesty, patriotic spirit, wisdom, control of passions, and knowledge. Although not all of them shared the same political ideas, they all pursued an antipatrimonial politics and were inspired by the republican character of the ideal political actor, which they applied to candidates and representatives. The “gentleman” was a modern rendering of the republican typology.84 It embodied the model of the ideal citizen as representative of the best qualities that made for a good government because, in Locke’s words, “if those of that rank are by their Education once set right, they will quickly bring the rest into Order.” When Montesquieu, Madison, Sieyes, and Burke referred to “competence,” they meant a kind of honorable dedication to the good of their society in the form of a competent service, something a gentleman was educated to do since his early youth.85 In addition, the small number of citizens who enjoyed the right to vote made the electoral body a kind of face-to-face democracy as well as a uniform society, and made the relation between them and the society at large vertical and paternalistic.86 The distance between electors and elected that was supposed to result from confidence was not so great if one thinks that the candidate competed with and submitted to the judgment of his peers, who probably knew him personally and shared his interests and culture. Candidates might have perceived the call for accountability (which confidence in fact obliterated) as offensive because it presumed potential for dishonesty on the part of the honorable and virtuous and a break in trust.87 When Burke proclaimed his autonomy of judgment from the voters, he proclaimed his own sincerity and honesty and presumed he was not in need of supervision external to his own conscience; but he also presumed a substantial equality of values and interests between himself and his voters, a condition that made trust 160

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meaningful, but not a blank check. Besides, he did not need a precise demographic study to know the social composition and political views of his constituency. One might say that Burke proclaimed his freedom as an equal among equals, not in order to promote his agenda or opinions, or those of one part of society against another. After all, the political society he was living in was a small, homogenous demos. Personal qualities, not political ideas or ideologies, were the object of electoral judgment.88 This explains the eighteenth-century usage of competence as a rational argument against parties and factions: if politics meant caring for the good of the community as a whole, no one group or interest, no one part of society, could define the general good. Only the virtue, knowledge, and civic education of the leaders could achieve this goal. The association of election with confidence and competence implied a call for “objectivity” and impartiality that was in tension with the mathematical counting implied by elections as well as with accountability. Madison was quite adamant about this: the general freedom of society required both that factions were not repressed and that the representatives transcended factions, or at least did not reflect them directly. The institutions of representative government should “refine and enlarge the public views by passing them through the medium of a chosen body of citizens.”89 The virtue and competence of the candidate were reflected in the rationality of the political decisions, just like in Rousseau’s republic. After all, the general will, like Madison’s good representative, was supposed to represent the middle, following a process of elimination of the extremes. Likewise, Sieyes saw the assembly as a body in which the common interest was created or recognized rather than the repository of an existing sovereignty.90 None of them reflected on the role of the party in a representative government, yet they were extremely alert to the fact that the future was the time dimension that elections brought into politics, a crucial aspect in the shaping of politics along ideological lines rather than according to pure competence and even virtue in the classical sense.

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Thomas Paine and the Perfecting of Simple Democracy The Sovereign Nation and Federalism’s Threat Sieyes, along with Paine, was one of the nine members of the Comit´e de Constitution chaired by Condorcet from September 1792 to February 1793. The committee was led by the Girondins. It was too hostile to the “reactionary party” to accommodate a centrist like Sieyes, who did not play an active role in the writing of the constitution.1 Little is known of the debates within the committee. Yet judging from the parliamentary debate that began two months after Condorcet had made the plan public in February 1793, the main point of contention seemed to be state centralization versus federalism. Robespierre and Saint-Just took it up in the National Assembly to accuse Condorcet’s plan of federalizing France.2 As for Sieyes, he did not comment on Condorcet’s plan in the National Assembly. However, judging both by his 1791 discussion with Paine and his subsequent reference to the 1793 constitutional debate, some scholars have concluded that Sieyes too criticized Condorcet’s plan of federalist implication.3 The speech Sieyes delivered in 1795, in the final days of the convention that discussed the new constitution, shows what he thought of Condorcet’s project critically. According to Alengry, “It is difficult not to see a direct allusion . . . to the Committee and the ideas of Condorcet” in the words 162

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Sieyes chose to recall his disagreement, “two years earlier” (that is, in 1793) with the democrats.4 In his speech, Sieyes outlined two possible interpretations of representative government. The first one, the correct one in his mind, which “the people’s friends in those days” (“les amis du peuple de ce temps-la”) did not understand, granted the people the power only of electing representatives (and at most forming the list of the candidates), denying them both the referendum and legislative initiative (the two oversight powers in Condorcet’s plan). The other committed instead the erreur grandement pr´ejudiciable of assuming that the people needed to delegate only those powers they could not exercise themselves (which, as we shall see, was precisely Condorcet’s position).5 Sieyes thought this was a “great prejudicial error” because by opening the door to democracy, it fatally opened also the door to federalism (the bˆete noire of the French Revolution, and after June 1793 a crime punishable by the guillotine). The argument that the nation “cannot speak but through its representatives” was an argument against democracy because it was an argument against federalism: these were two sides of the same coin, and moreover identifiable with the American model. Sieyes had already made this point in 1789, when during the debate on the royal veto he had insisted that citizens must limit their political action to the electoral authorization of their representatives, and expressed his disagreement with the admirers of the United States, accusing them of attempting to make France into a democracy and a federation, . . . to cut, chop, and tear [the country] into an infinity of small democracies, which then join together simply by the ties of a general confederation, rather as the thirteen or fourteen United States of America. . . . France must not be an assemblage of little nations, governing themselves separately as democracies; it is not a collection of states; it is a single whole, composed of integral parts. . . . France is not, and cannot be, a democracy; it must not become a federal state, composed of a multitude of republics, united by some kind of political tie. France is and must be a single whole, subject throughout to a common legislation and a common administration. . . . The people or the nation cannot have but one voice, that of the national legislature.6

It should thus come as no surprise that the moderate Sieyes agreed with the Jacobin Saint-Just, who explicitly accused Condorcet of smuggling federalism into his plan with his provision for primary assemblies.7 Although they were pursuing quite different political projects, their objection rested on the same assumption: that democracy and representative government were “two very different systems,” and that the unity of 163

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the sovereign will could not accommodate itself to a broader process of deliberation without risking political fragmentation. Once the plurality of opinions is “brought to the public” in the form of the individual secret ballot, only a unitary representative body could give it a public voice and create “a common majority will from all these isolated opinions.”8 Both Sieyes and the Jacobins used “the arguments Rousseau had made against representation in order to state that ‘the general will’ is . . . in the elected ‘legislative power’!”9 And unless the unity of the state was sacrificed—and a federation was formed, as Rousseau had already argued in his plan for the constitution of Poland—the “the power of willing and acting” (“facult´e de vouloir et celle d’agir”), which originally belonged to the sovereign people, had to be transferred to the central representative institutions.10 In sum, the issues of federalism and democracy were deeply intertwined and directly connected to the conception of sovereignty as will. Despite his claim that representative government was not in principle “incompatible” with democracy, Sieyes’ implicit disagreement with Condorcet revealed deep reservations about the desirability, not simply the viability, of creating democracy in a large state.11 It revealed that he saw democracy as a combination of direct rule and small territory. He shared more or less the view of Federalist 63, in which the modernity of representation was also claimed: although ancient republics used electoral selection to appoint some of their officers, no form of representative government “could have succeeded within the narrow limits occupied by the democracies of Greece.” A large territory was the condition for the successful implementation of representation, not an unfortunate accident that the moderns coped with through the invention of representation. Thus it was not merely that face-to-face democracy could not be a model for the moderns, but more radically it had been a necessity the ancients could not escape given the lack of physical distance they could put between themselves. Since representative institutions were an essential condition for making popular government stable and secure for individual freedom, a large territory was a prerequisite for republican government.12 Territorial federalization was as problematic as social federalization. Hobbes’ and Rousseau’s specter of intermediary bodies resurfaced in Sieyes’ mistrust of the “partial meetings” of citizens. Combining participation and representation meant that citizens would interfere with the mandate of the elected and violate the leading principle of constitutional government: the “reciprocal independence” of all powers and in particular that of appointing representatives and making laws.13 In 164

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sum, free mandate (which defined representation) had two goals: serving the sovereign unity (territorial and social) of the nation and checking the incompetence (and lack of time for political duties) of ordinary citizens. So the true choice was not between more and less democracy but between state unity and democracy. Condorcet’s plan of primary assemblies as loci of political deliberation rather than election alone was oriented to federalism because it was democratic: it gave the people other political functions besides authorizing competent lawmakers. That the people were “interpellated” as citizens, not simply as electors, implied two things: first, that ordinary citizens were competent enough to intervene on public issues; and second, that citizens were allowed to directly voice their opinions on issues. In both cases, the result would be a fragmentation of sovereignty. Thus, the primary good of national unity demanded a clear division of labor between representatives and electors, or the renunciation of democracy. Sieyes was putting Rousseau’s logic in the service of a project that was anti-Rousseauian: electoral ratification as the only right of the sovereign; rigorous simultaneity of the electors’ presence (election day); and rigorous silence in the act of election (secret ballot). Yet Sieyes misrepresented the nature of Condorcet’s plan, which declared the “French Republic . . . one and indivisible” and conceived the primary assemblies as parts of the national system of representation, rather than as alternatives to it.14 These assemblies, as we shall see, did not institute direct “rule” by the people because their votes had to be submitted to the scrutiny and vote of other primary assemblies and finally to the National Assembly. Sovereignty resided in none of these particular instances but in their interrelation.15 Neither did the primary assemblies jeopardize liberty because their deliberative functions were regulated by “very detailed and minute procedures, cleverly conceived so as to avoid tyranny of any kind.”16 Condorcet was proposing neither direct democracy nor federalism. Rather, he was trying to devise a democratic system appropriate to a large state. However, in his attempt to oppose democracy and federalism, Sieyes acknowledged that two interpretations of representative government were possible. In small and not populous territories, the “associates” met and discussed their political needs directly: this was “democracy in its origin,” or “brute democracy [in which] the passions were too much on the surface.” But in large and populous territories there were two possible ways to unify “the multiple and complicated particular affairs” into a common will. The first, which echoed Condorcet’s proposal, consisted 165

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in facilitating “partial meetings in the various localities”; the second, instead, consisted in “nominating deputies for a central assembly.” According to Sieyes, the first could not result in “one general will” because it gave voice to the citizens living in the localities rather than to the electors of the nation.17 So Sieyes identified two possible types of representative government: one in which the primary assemblies were more than electoral districts and one in which the primary assemblies were only electoral districts. “In reality, the treatment of public issues cannot be a prerogative of the primary assemblies in a country that has not adopted, and cannot adopt, a purely democratic regime.”18 Even if he personally rejected the first (or democratic) model, by listing it as a form of representative government, Sieyes actually conceded that it was technically possible for the citizens of a large state to organize themselves in a democracy. Although this form of democracy was representative, it did not consist merely in electoral democracy nor was simply a face-to-face democracy. Sieyes repudiated this view as une erreur grandement pr´ejudiciable because, besides engendering federalism, it suggested quite explicitly that the protection of individual liberty required some forms of citizen participation.19 Since its very inception, thus, the debate over the place and function of representation—whether merely institutional or political—was also a debate over the relationship between liberalism and democracy. To paraphrase Constant, it could be said that Sieyes criticized Condorcet’s project to combine the liberty of the ancients with that of the moderns, a criticism that was consistent with the distinction he made between passive (civil) rights and active (political) rights. Representative government would increase the chance individuals had to enjoy their private liberty, while democracy would curtail it. “Democracy as it is commonly understood will only give a minimum of individual liberty. For it is the complete sacrifice of the individual to the public weal, that is to say, of the tangible being to the abstract being.”20 In conclusion, the interpretation of representation in relation to democracy depends greatly on the conception of sovereignty. If sovereignty is seen as the unitary voice of a kind of general will that the nation contains already implicitly but cannot articulate and discover by itself, then the citizens have no role (or political voice) apart from that of appointing the elite of which they are a reflection. If, on the other hand, sovereignty is seen as a process of articulation of opinions whose source is society’s multiple sites and components and the judgment of each citizen, then the central representative body is not its only voice, even if it needs to be its final, albeit provisional voice. This is the meaning of 166

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the disarticulation I am trying to make between will and judgment in the definition of sovereignty.

Democratic Republicanism It might be useful at this point to turn to Paine’s political ideas since they are an interesting case of the merging of liberal and democratic perspectives and a bridge between representative government and representative democracy. Paine, who is the recognized author of the Constitution of Pennsylvania, which was a model for Condorcet’s plan, co-edited the journal Le R´epublicain ou le D´efenseur du gouvernement repr´esentatif along with Condorcet, and was one of the nine members of the Committee of Constitution chaired by Condorcet. The French revolution became his republican and democratic classroom.21 Historians have argued that, just as the Varenne affair revived the republican movement in France (which before 1791 was negligible), Sieyes’ proposal of the marc d’argent—and more generally his distinction between active and passive citizens—revived the democratic movement. Paine symbolized the republican turn and Condorcet the democratic one. The few letters that Sieyes and Paine exchanged in July 1791 (published both in Le Moniteur and Le R´epublicain), and Condorcet’s leadership of the campaign against the marc d’argent as a member of the Commune of Paris, marked those ideological transitions, as well as the trajectory of the Revolution (before the Terror) from Lafayette’s and Sieyes’ liberal-monarchical constitutionalism to democratic republicanism.22 The two parts of Paine’s Rights of Man epitomize that ideological transition quite well. Lafayette is the hero of part 1 (1791), in which Paine depicted the French revolution as a revolution against monarchical despotism, but not against monarchy itself. Part 2 (1792) was essentially constructed as a counterargument against the monarchical model of representative government and a defense of a democratic republic. Although it is mainly perceived as an anti-Burke pamphlet, the real thrust of part 2 was to challenge the moderate leadership of the Revolution and in particular Sieyes’ claim that monarchy could be a legitimate form of government (or a republic).23 This volume is the first conscious attempt to give a democratic foundation to representation. Paine’s theory of representation as it appeared in part 2 of the Rights of Man was based on a democratic notion of national sovereignty as the constitutional foundation of civil and political rights. The latter were, like the former, an emanation of natural rights as rights of reason, neither 167

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a concession nor a function. Civil and political rights were the founding principles that enabled the people to protect their freedom through regulated conventions that gave birth to institutions as well as to the procedures of ordinary legislation and constitutional revisions. “Every civil right has for its foundation some natural right pre-existing in the individual, but to which his individual power is not, in all cases, sufficiently competent.”24 Paine deduced the representative form of government from the definition of sovereignty as res publica, or the general interest of the individuals making up the people. But his res publica lost all physical and existential connotation; it was not located in any determinate time (for instance, before the institution of the government) and was not something possessed, personated or “figurated” by any actual beings, individual or mass.25 The magistrates did not possess it but exercised it in the form of a temporary office they were invested with by the people. The people as a collective did not possess it either because sovereignty was neither an act of the will nor something that predated the political constitution, but a complex and persistent work of unifying political opinion through the criterion of the general interest and consented procedures. This radical depersonification of the sovereign nation allowed Paine to distinguish between direct and representative democracy, as well as to identify representative government with the democratic republic. Res publica was both the norm for political judgment as well as a form of power distribution and functioning. Its opposite was res privata. Republic “expresses perfectly the idea which we ought to have of Government in general—Res Publica—the public affair of a Nation.” The idea that “all delegated power is trust, and all assumed power is usurpation” meant that all power should emanate by consent (direct or indirect) from those who were supposed to obey the law: res publica encompassed the issue of “who” ruled and “how” the rulers ruled, and stated a relation of intrinsic correspondence among them.26 This is where Paine parted company with other “republicans” of his times, in particular Rousseau, Kant, and Sieyes. Like them, he thought the republic was synonymous with legitimate government. As such, sovereignty had an antipatrimonial connotation, and therefore could not belong to “any individual” or “part” of society. However, unlike them he denied that the republic could have nonrepublican forms of government. Thus, while Paine, like Kant and Sieyes, contemplated only two possible regimes—republican and autocratic—considering only one legitimate, he disagreed with them that a legitimate regime could bear an organization of state powers that was not republican. The republic was the only legitimate state order 168

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because it was where, as Kant wrote, “the law itself rules and depends on no particular person,” and thus springs either directly or indirectly from the people.27 The way Paine interpreted the republic determined the difference from Sieyes’ representative government. To anticipate the argument I am going to develop in the next chapter, the former prefigured an acephalous as collegial structure of the state and parliamentary democracy (Condorcet developed this model more consistently than Paine), while the latter prefigured a vertical structure and a presidential republic.28 By building legitimate government on consented delegation, Paine could avoid Rousseau’s dilemma between sovereignty and representation and also distance himself from Sieyes’ monarchical (life tenure) or personalistic solution. Delegation based on consent as opposed to possession as well as transfer was the only legitimate “origin” of state institutions and was what made representative government an alternative to all forms of nonelected powers apart from direct democracy. There was no room for legitimate selection procedures that did not take the form of either rotation or election. Paine’s democratic model of the republic required rigorous equality of political rights. So quite consistently, only two forms of government met his res publica criterion: democracy in its simple form and democracy in its representative form. Following in the footsteps of the authors of The Federalist Papers, Paine used the word “republic” to denote the latter. But distancing himself from them, he did not embrace mixed government as a strategy of popular containment.29 Rather, he thought that both direct and representative democracy were “good” or legitimate forms because both presumed a “government established and conducted for the interest of the public” and in the absence of inegalitarian institutions such as monarchy or an aristocracy of magistrates. So not only did Paine disagree with Sieyes about the legitimacy of including the monarchical form within the republican regime, but he did not deem legitimate any form of delegated politics that violated the basic principle of equality (in eligibility as well as consent by direct voting). Therefore, neither “monarchical” England nor “republican” Holland was a res publica (although they both practiced elections); only democracy in “the simple form” and democracy in “the representative form” were res publica or nonarbitrary political orders, though they did not practice the same form of lawmaking. Athens was equally a res publica as the United States of America.30 Their difference was not one of substance though, even if it was remarkable because the representative form was not merely another democratic form, but a perfection of democracy. 169

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Paine’s claim that large territorial states could be republican, and that not all self-defined republics were in fact republics, should be read as a critique of Montesquieu (and the school of thought he inspired). The Spirit of the Laws challenged republicanism on the issue of individual liberty and did so by way of two different arguments. On the one hand, it claimed that republican states could not guarantee liberty because they did not have a social organization that could secure an effective division of powers: the Italian republics of the Renaissance were Turkish-like despotic states because their society lacked the moderate functions of an honor-based aristocracy and could thus not have secure, moderate governments. Their society was egalitarian (because it was based only on money), so that although they had a “multitude of magistrates” and did not concentrate state functions, their magistrates “were taken from the same body” more or less as in a democracy.31 Individual liberty and moderate government needed social inequality (“honor” moderating “equality”). On the other hand, The Spirit of the Laws codified a maxim that would become canonical: democracy can exist only in a small territory because it relies upon political virtue, which, like any virtue, has to be exercised in order to be effective; but militantly virtuous citizens in a small territory inevitably jeopardize individual liberty. Liberty and political moderation required substituting representation for participation. Once again, equality was the problem. In sum, Montesquieu thought republics were despotic when composed of a homogenous citizenry (albeit an aristocracy of merchants) from which all the magistrates were chosen, and when they were small and thus unable to consolidate a system of unequal distribution of political functions. In all cases, equality was the problem. There was hope for large states because they needed to be ruled by mixed (presidential-monarchical) and representative constitutions, thus were moderate regimes. Montesquieu deliberately called England a “commercial republic” because he wanted to suggest that there was more chance for liberty in large states than in small ones if their social fabric was market based and thus served the division of power and representation. Hence Montesquieu’s theorem: representation can engender liberty insofar as it limits (and sacrifices) political equality; in fact, it engenders political inequality by distributing political functions according to honor and class membership or competence (this is the task of election). Representation allows for mixed government and an elected aristocracy, the necessary conditions of stability, moderation, and liberty. Montesquieu laid the foundation for the debate between Paine and Sieyes on republic and monarchy insofar as he inspired the two 170

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arguments Sieyes developed against a democratic republic or, as he himself called it, a polyarchic republic. First, Sieyes conceived of the socially equalizing role of the market as a positive resource as well as a cause for concern in a way that was reminiscent of Montesquieu and anticipated Tocqueville. By polyarchic republic, Sieyes meant what Tocqueville would call “democratic society.” It meant a (social) system in which individualistic ambition replaced virtue and abnegation in public life and service. Sieyes thought that in a “monarchical republic” (or mono-archy), competence and useful political qualities were more likely to be “appreciated and recompensed” (elected) because the transcendent authority of the monarch functioned as a constant symbolic reminder to all the subjects that the good of the nation transcended individual interests and that the nation was an honorable entity not to be equated with the fortunes or ambitions of its members and competitors for parliamentary seats. In a way that echoed Constant’s fourth power, Sieyes’ “king” played a symbolic role of unity and moderation, in relation to both the popular (electoral) foundation of the legislature and the ethics of competition that ruled the social and political fabric.32 Political representation (collective deliberation in the representative assembly) needed to be moderated by symbolic representation (state authority’s personification). In the tradition of Polybius, the role of the “king” and the senators (the representatives as a selected aristocracy, in Sieyes’ view) was to counterbalance the masses and to moderate the spirit of equality entailed by the democratic component of mixed government. Thus, a` la Montesquieu, Sieyes claimed that individual freedom is more secure in a mono-archic than in a polyarchic republic (read “democracy”).33 Indeed, in the latter no counterweight existed, neither in the society nor the constitution, so that emulation and ambition alone would keep alive and stimulate the political order, and “ambitious” individuals would not hesitate to “gain an influence that is contrary to the interest of [their] country.” Just like Montesquieu (or Hegel), Sieyes saw monarchy as an ethical institution that embodied the unity of the nation beyond the partial interests of its members, and served as the model of the political profession in that it was shaped by virtue, honor, and competence, rather than ambition and interest.34 In short, the king was the symbolic agent for preserving the republican spirit of honor and politics as a public service within a commercial society. He was representative of the unity of the nation above political representation (lawmaking) and a society of free agents of production and exchange. Sieyes’ second argument in favor of a “monarchical republic” was characterized by a narrow interpretation of political equality and was 171

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consistent with his distinction between civil and political rights. If res publica was the criterion of political legitimacy, and representative government was the only form of legitimate government (as both Sieyes and Paine believed), then the question was whether representative government required that all state functions be based on election and held by collective bodies. Like Kant, Sieyes separated the principle of legitimacy from the form of government, and concluded, contra Paine, that the republic did not require that all state functions be based on an egalitarian foundation. In a society shaped by legal equality, if equality was not limited, it could lead to despotism. In sum, like Montesquieu, Sieyes regarded both representation and monarchy as factors of liberty because they acted as moderators of equality: the former insofar as it induced citizens to delegate their political power and the latter insofar as it reminded citizens that their equality was only legal but did not need to be social and political.35 Legal equality was the precondition for liberty; its protection did not require democratic government or political equality. In the context of representation, moderate equality provided for a mixed constitution or a moderating combination of collective and individual agencies of political decision.

Democracy Surpassing Itself Sieyes singled out two geometrical models of representative republics to explain the difference between his idea of the republic and Paine’s: one in the form of a triangle, and the other in the form of a circle.36 The former was a reformulation of classical republicanism in that it combined monarchy, aristocracy, and democracy: the king, the representatives, and the electors. The latter was a democratic version of republicanism in that it presumed and required that all functions be filled by consent (election or rotation) and held by collegial bodies. To use the analogy of ancient republics, Sieyes’ republic was modeled on the Roman tradition while Paine’s was modeled on the Athenian tradition. The former ended up in a “vertex” and the latter in a “flat form.” This distinction between “monarchical” and “polyarchic republic” prefigures the distinction between liberal republic and democratic republic, or the two possible trajectories of representative government I have discussed in this book. The important fact is that Sieyes’ distinction implies that representation and democracy are not contradictory and are in fact both based on a rigorous view of political equality. It is worth notice that he intentionally resorted to an element—the monarch—that 172

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was exogenous to political representation in order to moderate the egalitarian implication he understood as inevitable in representative government. Insofar as Paine criticized this assumption, he could bring Sieyes’ philosophy that “all human relations are representative” to a democratic conclusion. Paine gave two reasons for the superiority of representative democracy: first, it distinguished between the sovereign and the government in a way that simple democracy could not; and second, it allowed for the duration of the res publica over time, and in fact indeterminately.37 Paradoxically, Paine used Rousseau’s legitimacy argument (separation of sovereignty and government) to justify representation, and moreover used it to remedy the problem of the political decline of a legitimate government, which concerned Rousseau. So the size of the territory was the fortunate coincidence that allowed the moderns to understand the normative value of representation and regard democracy in its nonsimple form as “preferable” “even in a small territory.” Sieyes made this argument before Paine, as we have seen in the previous chapter. However, it was Paine who gave it a democratic twist. “Athens, by representation, would have surpassed her own democracy”—that is, it would have more perfectly conformed to its res publica and, finally, it would have proved more durable.38 Like Sieyes, Paine believed that representation was preferable because of its consistency with the character of civil society. However, unlike Sieyes, Paine used the sociological argument not to make the representative system functional to the “needs of society,” but rather to ensure that the interests growing within civil society were used for the “interest of the public.”39 This point is crucial. By remaining “simple,” Paine’s reasoning goes, Athenian democracy condemned itself to a short life because it could not overcome the contradiction of, on the one hand, stimulating individual freedom and a dynamic society and, on the other, lacking the means to cope with the pluralistic outcome of that freedom. Despite its small territory, Athenian democracy declined because it had no “method to consolidate the parts of society.”40 Representation was not an expediency but the norm. To construe Paine’s argument, simple democracy presumed simple equality or an immobile homogenous society since the immediacy of its political system could not transform the division of labor and competence (which grew within society) from a potential factor of conflict and fragmentation into a resource of political unification and coordination. When “agriculture, commerce, and manufacture” are distributed among the different parts of the population (division of labor), they fracture the 173

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unity of the “general interest” and engender the formation of “parts” within society (social class or interest groups). In a complex society (and a republican order inevitably promotes a complex society because it is based on freedom), the “interest of the public” does not spring immediately from the will or virtue of individuals, but has to be recreated and interpreted out of social and individual differences. Multiplicity of interests and views has to be transformed into a unitary process of decision or a general law that can be imposed on all without representing any particular will or interest. Without the idealizing work of representation, democracy lacks this capacity and cannot shield the “general interest” and the generality of the law from the direct interference by factional interests and classes.41 Representation resolves the problem of presentism that sovereignty as an act of the will or direct voting on issues engenders. Paine imagined the democratic founding as the norm of state formation and explained nonrepublican forms of government, like monarchy and aristocracy, as degenerations of the democratic beginning as a result of changes in the social and numerical composition of the “population.”42 Representation could break the cycle of democratic decline because in providing social interests with a mediated public channel through which to convey their requests and aspirations, it forced them to work for the general interest. Finally, representation could overcome the limitations of space and allow the extension of political equality to communities that transcended the village. In a cosmopolitan frame of the mind, which Paine shared with his contemporaries, he thought representation could project delegated politics beyond national borders. (It was certainly able to transcend the borders of the states of the Union and extend the political space of the American republic beyond the imaginable.) It is interesting to see that, contra Montesquieu’s dictum, Paine argued that monarchy, not the republic, fit small-scale states better because the complexity of large societies ensured that they would escape the cognitive potential of one ruler or even that of several rulers.43 Thus, representation reflected the social order in the sense that it enabled society indirectly to serve the general interest (res publica), rather than in Sieyes’ sense, where it was a means for adjusting the political system to society’s quest for freedom from politics. The norm was representative rather than direct democracy because representation kept the “parts of society” together, and preserved political freedom or the res publica. Indeed, because it had no way to distinguish and mediate among the social and political spheres, or among individual interests and the general good, in an ongoing way and without coercion, simple or faceto-face democracy was doomed to allow one part—the strongest—to 174

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increase its power at the expense of the other parts, and finally of the whole society. In the absence of representation, individual interests and social pluralism would either cause the res publica to deteriorate into status inequality (new oligarchy) and factionalism, and democracy to degenerate into aristocracy or monarchy, or, worse, plunge the state into civil war and the anarchic decomposition of the political body. Representation allowed for the preservation of both political and individual liberty, not just the latter. So like the constitution, it was consubstantial with, rather than simply an expedient to, democracy. “By grafting representation upon democracy, we arrive at a system of government capable of embracing and confederating all the various interests and every extent of territory and population.”44 Once again, Paine used an image created by Sieyes to further his democratic argument: Representation gives the nation a “common center in which every radius meets,” without the need for a unitary “center” of power, such as the king or the physical presence of the demos. It filters and collects knowledge from “the interests of the parts,” and creates a “whole” in which every one can recognize him- or herself, because it is based on, and is the result of, the public contribution of the “practical knowledge” or judgment of all.45 In conclusion, representative democracy “surpasses” simple democracy because “possesses a perpetual stamina both of body and of mind, and presents itself in the open theater of the world in a fair and manly manner. Whatever are its excellencies or its defects, they are visible to all. It exists not by fraud and mystery; it deals not in cant and sophistry; but inspires a language that, passing from heart to heart, is felt and understood.”46 Condorcet’s constitutional plan would attempt consciously to flesh out Paine’s maxim and devise institutions and procedures that would allow for the regeneration and preservation of this “perpetual stamina” by articulating the spatial and temporal dimensions of citizens’ and representatives’ political presence.

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A Republic of Citizens: Condorcet’s Indirect Democracy Whereas Sieyes questioned the cogency of a “representative” democracy and thought elections instituted a mixed regime wherein “authority comes from the top and confidence from the bottom,” Condorcet wanted his representative constitution to be an alternative to the mixed-regime scheme and to regulate the creation of authority “from the bottom.”1 Both leaders were driven by an identical and contextually determined desire: to put an end to the state of permanent revolution and to reconcile legitimacy and legality; but only Condorcet suggested “legalizing” the revolution in order to end it. Rather than planning to substitute representative government for democracy, he redefined the relationship between democracy and representation with a view to countering two further threats besides the one most lamented (the tyranny of the majority): the “tyranny of the few” and the potential for disruption of the legal order by spontaneous popular mobilizations. Thus whereas Sieyes saw democracy as a lower stage of political organization appropriate to “rude” peoples, Condorcet saw it as the norm of good government and as a model for highly complex and civilized societies. Rather than a binary model, with election playing a zipperlike role, Condorcet envisioned a threefold scheme composed of the individual citizens, the primary assemblies, and the national representative assembly. Furthermore, he 176

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integrated these institutional instances with the informal expressions of public opinion and debate arising from civil society. He thought democracy itself could check democracy, not in order to limit it, as critics have claimed, but to allow it to produce good laws and empower rights. In sum, Sieyes and Condorcet came up with two paradigmatic models of representative government, one of which was dualistic and the other circular. The former created a chronological polarization between extrainstitutional constituent power and constituted power; the latter attempted to create a flexible relation between participation and representation so as to prevent random fluctuation of the people between a state of depoliticized passivity and a state of extralegal mobilization. Representative democracy designated a movement of circularity between the outside and the inside of state institutions and gave sovereignty the “legal means” to regulate the continuum (and likely interruptions) of the decision-making process linking the citizens and the legislative assembly.2 Condorcet had a civic view of politics and tried to devise the procedures of collective deliberation so as to neutralize the impact of “bad faith” and corruption in decision-making, as well as to make laws that were as consistent as possible with basic rights, without renouncing the centrality of the legislature.3 Although he believed that representative government fit modern society better than direct government, he did not make politics a reflection of social and economic behavior, nor did he attribute deliberative competence to a particular profession of politicians. He conceived the constitution as a way to disseminate the ability to make competent political judgment on issues, laws, and representatives’ behavior.4 Whereas Sieyes’ sovereign nation had no “legal means” to express itself politically outside the electoral booth, Condorcet’s sovereign citizens were given the right and opportunity to be active whenever they deemed it “useful or necessary,” and could influence the legislative process directly, not simply by electing representatives.5

The Longue Dur´ee of the Democratic Project in the Age of Representation Witness to times of extreme political instability, Condorcet devised a constitutional order that is one of the most democratically advanced and imaginative produced by the West in the last two centuries. He submitted it to the National Assembly on February 15 and 16, 1793. Interpreted by its contemporaries as “the last word of the social system of the 177

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Girondins,” the plan of the constitution was mainly, although not only, Condorcet’s own work.6 The unfortunate context of its birth—namely the trial of the king, the war, and the a priori unwillingness of the Montagnards to examine a project devised by someone they regarded as a friend of their enemies—militated against Condorcet’s plan. The climate of tumultuous intolerance at the Convention made discussion practically nonexistent. Submitted to the Assembly for final approval, Condorcet’s proposal was strategically disregarded by the Jacobins and finally discarded by the Girondins themselves. Only partially discussed and soon rejected, it was mercilessly attacked by Saint-Just and Robespierre in the Assembly and the press and not supported by his friend Sieyes, who regarded it as a plan for poly-archy.7 The constitution that was passed at the end of June 1793 (but never implemented) did not bear Condorcet’s name, although it endorsed some of his proposals, without however being equally democratic and protective of rights, as Condorcet himself complained.8 Recognized in his lifetime as the last of the philosophes (and mocked by John Adams as a “Man of Science, but little acquainted with history: ignorant, totally ignorant of all Writings of the Science of Government, with very little knowledge of the Human Heart and still less of the World”), Condorcet’s reputation as a political theorist did not survive his death.9 Identified as a party man although he was not one, and remembered above all as a victim of the Terror, Constant’s acknowledgment of him as the father of the distinction between the liberty of the ancients and that of the moderns, and Mill’s appreciative mention of his defense of women’s emancipation, did not spare his political ideas from oblivion. Radical scholars have mistrusted his legalistic rendering of popular participation and pitted his representative democracy against the democratic view of the radical wing of the Revolution. Liberal scholars have found his plan too complicated and tilted toward direct democracy and have turned to Sieyes’ ideas of representation as more realistic and consistent with the liberty of the moderns.10 Condorcet’s theoretical ideas were no more successful than his political role in the Revolution. Most contemporary political theorists mention him essentially for his application of inverse probability calculus to voting (the jury theorem) and his “axiomatization of Rousseau’s General Will” or rather Rousseau’s claim that, given the norm of unanimity, majority decisions are the closest to the “truth.” The last philosopher of the French Enlightenment left his most lasting mark on social choice theory and the logic of collective action—the paradox being that his less democratic writings have become the privileged texts in the Condorcetian 178

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reading of Rousseauian democracy.11 His identity as a founding father of political science meant he was ostracized from political theory, where his contribution to political thought is generally reduced to abstract rationalism and equated with the ideology of a linear progress and an optimistic cosmopolitanism. For better or worse, Condorcet’s name is primarily associated either with his prerevolutionary essays on the application of mathematical calculus to elections or with his last work, the Esquisse, written once his political role in the Revolution was over and as ante mortem testament.12 Political theorists have largely ignored his mature political ideas, and in particular his comprehensive views of the constitution, democratic deliberation, and representation. Condorcet’s reception among historians of political thought has been less ephemeral but no less controversial. They have emphasized two aspects: his role as a precursor of republican France and his role as a political leader who, in a na¨ıve attempt to find a compromise between Girondins and Jacobins, ended up using democracy in order to limit democracy. They have depicted him as representative of the Enlightenment illusion that it was both possible and desirable to purify politics of errors, prejudices, and passions, and as a theorist who believed that politics could be enacted in an aseptic domain, tamed by uniform rules and peopled by impartial actors.13 A Cartesian sort of Rousseauian, his main goal appeared to be to free classical republicanism from the intemperance of virtue in order to convert it into a politics of impartiality and truth-seeking. Thus, he not only remained faithful to Rousseau’s absolutist view of sovereignty, but his rationalistic elitism paved the way for the nineteenth-century technocratic approach to the social sciences advanced by French positivists. All in all, Condorcet’s contribution to modern democracy has been judged from the point of view of its defeat. The failure of his plan has been made exemplary of the fatal contradiction thwarting the French Revolution: “the rationalist discourse of the social utopia” versus the “voluntarist discourse of the general will,” the tension between political equality and representation, between democracy (and republicanism) and liberalism.14 Rather than reading Condorcet’s constitutional project from the point of view of its defeat or as an offshoot of Rousseau’s doctrine, I analyze it as an independent project of democratic government. I propose studying it from the perspective of its longue dur´ee implications in the belief that the consciousness and understanding of its meaning is relevant to us in a deeper sense, as women and men of an epoch inherently marked by the democratic utopia to which Condorcet contributed, and by the 179

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dissatisfaction with the way democratic institutions have been implemented and work. My aim is neither to reconstruct Condorcet’s political thought nor to assess its place and meaning in the French Revolution. Rather, my goal is to pursue the search for the principles and genealogy of representative democracy. Condorcet is an interesting example of a thirdway solution that defies the two mirror-like radical approaches that have marked the debate over modern democracy since the eighteenth century: the mystique of sovereignty as immediate and existential presence and the allegedly objective realism of electoral democracy as the death of sovereignty. It is no surprise that Robespierre raised the same objection to Condorcet’s plan that Constant would later raise against the Jacobins: that of distracting the citizens from their social occupations and enslaving them with too much political participation.15 I propose studying Condorcet’s political ideas as a contribution to modern democratic constitutionalism and emphasizing its uniqueness and heterodoxy in relation to the doctrinal tenets of republicanism, liberalism, and democracy.16 Although he embraced a republican view of the political order, Condorcet did not indulge in the myth of the static perfection of the city of the ancients but believed that the moderns had the chance to institute political freedom in more secure, stable, and tolerant ways. Although he rejected the seventeenth-century doctrine of Godgiven natural rights (and deism more generally), Condorcet translated sovereignty into the language of “rights” and conceived the constitution as the founding process of a legal, political, and ethical order whose goal was to facilitate “the most complete enjoyment of their [individuals’] rights.”17 In his mature political thought, he neither derived state legitimacy from a contractarian theory of politics, nor turned to a relativistic and historicist justification of the forms of government; rather he looked to a fallible-but-perfectible human reason for the normative principles that could link legality and legitimacy. Finally, although he believed the legitimacy of representative institutions depended on consent, he did not think democracy meant the identification of self-government with direct participation. Condorcet redirected participation from a passionate-emotional kind of virtue to a discursive-judgmental type and prefigured the transition of classical republicanism to a deliberative kind of democracy. Acting on behavior through procedures and norms in order to orient reason and moderate passions and making judgment a guide to the will are the characteristics of what I would call republicanism of the norm. The idea of the common good as recta ratio, or the norm of justice as the supreme 180

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criterion of judgment (the law) and liberty was the republican motive that inspired Condorcet’s constitutional plan—which was, in Europe at least, the first attempt ever made to reconcile democratic lawmaking and individual rights without endorsing the two main features of liberal constitutionalism: the system of checks and balances and an external nondemocratic control over the legislature. It was finally the first cogent democratic alternative to both Montesquieu’s (and Sieyes’) aristocratic model of representative government and Rousseau’s immediate and unrepresentable sovereignty.

Perpetual Innovation versus Immediate Politics Condorcet’s democratic republic was characteristically modern. It was based on rights, and characterized by both a radical depersonification of state functions and a combination of juridical and political conceptions of sovereignty; all its laws were open to revision and revocation and all political functions were elective. Sovereignty existed and operated in the form of a right, albeit a complex rather than a simple kind of right.18 It was codified in the Declaration of Rights and its activity regulated by the Constitution, but it manifested itself in ordinary politics also as a reflective movement of judgment that each citizen could activate over any public issue, law, and institution through the formal channels devised by the constitution as well as the informal channels guaranteed by civil rights. Society and the government, public opinion and deliberative institutions, were in a permanent and dynamic dialogue.19 The “right of sovereignty” encompassed several rights: the right not only to choose candidates and elect representatives, but also to revise the constitution at set times (every twenty years) and to propose constitutional amendments at any time. Citizens disposed also of procedures for proposing the enactment of new laws and the repeal of existing ones, and their action could, on occasions specified by rigorous criteria and norms, provoke new legislative elections and, in this sense, a kind of recall.20 The right to ratify the constitution was the basic sovereign right though. It belonged to the “universality of the citizens” and could not be delegated since “the right to determine the general rules to which the actions that are not abandoned to the individual will are to be subjected cannot be held in the name of the society and by its agent.” This meant that “redactors,” not representatives, sat in the constitutional assembly.21 Once the citizens had approved the constitution (by direct ratification), the legislative function split in two: legislation properly 181

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defined, or promulgation, and reclamation. The former was exercised only by the representatives, whereas the latter could be exercised by the citizens directly. As I will explain at the end of this chapter, constituted powers preserved popular sovereignty’s surveillance and revoking function. Like Rousseau, Condorcet believed that the people were sufficiently competent to decide on public issues and to interpret their rights according to the general interest. But he was less pessimistic than Rousseau concerning the possibility of creating democracy; his constitution presumed that citizens were sufficiently competent to both vote and deliberate, not only to vote in silence. Like Rousseau, he thought that the problems of democracy (the majoritarian supremacy) originated in the fact that democracy was based on individual reason: citizens were not only supposed to make political decisions according to their own autonomous judgment, but also to know when to follow their individual judgment and when to defer to public opinion and the maxims of the general good. Unlike Rousseau, Condorcet thought that public discussion was the best way to reconcile the mind of the individual citizen with that of the generality. The press and freedom of speech and association were essential because they facilitated the circulation of opinions and the symbolic unification of a large and populous territory as well as the enhancement of a capillary system of deliberation that tied the legislative center with the censorial periphery and was an aid to individual thinking. (Much like John Stuart Mill after him, Condorcet linked the possibility of democracy in large states to the invention of printing.)22 To understand Condorcet’s democratic view we have to remember that his primary target was immediate rather than “direct” democracy as it was implied in the eighteenth-century myth of the ancient republics and Rousseau’s model of sovereignty as pure decision or simple ratification. Condorcet’s response to Rousseau did not imitate Montesquieu’s model, though. In his mind, immediate democracies failed not because the direct involvement of the citizens prevented them from achieving equilibrium of classes, interest, and state powers, but because they failed to connect popular consent to indirect forms of political action.23 They failed to put a distance between citizens’ will and decisions and collapsed the time of politics into the instant of voting. “Immediate democracies” could not solve the stability problem arising from the democratic principle of revocability because they did not provide their citizens with the “legal” means to solve the contradiction between legality and the changing will of the majority without subverting the entire political order. They failed because they had no procedures 182

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to slow the decision-making time and did not know how to cool sudden impulses of the will.24 So their problem was not popular presence or participation per se, but their lack of “fixed laws” that regulated citizens’ right to revoke the laws they made. In a nonconstitutional and nonrepresentative democracy, any change would immediately jeopardize the entire system and put liberty at permanent risk. Condorcet built his model representative democracy on an assumption that is as old as Western political tradition: the connection between democracy and legal change. He did not turn to legal inflexibility or status quo, though, but tried to devise procedures able to make legal innovation a source of stability and betterment.25 Disagreement was the organizing principle of Condorcet’s perspective on the performance of the democratic decision-making process.26 Indeed, he thought of the constitution neither as evidence of a necessary evil (government) to be tamed nor as a “conservative” expedient that would tame participation. On the contrary, the constitution set up political processes that presumed dissenting interpretations of the meaning of the “common opinion.” He approached the democratic decision-making process from the perspective of the negative, so to speak. He asked himself how this process could be made less prone to error without resorting to nondemocratic strategies, and whether provisional obedience could be regulated without risking the subversion of the entire legal order.27 The true obstacle to just laws and political stability was the immediacy of decisions, not democracy or participation, not finally the possibility of legal innovation. Hastiness facilitated both misperception and the persistence of misperception. It encouraged mental indolence and ideological conformism insofar as in not giving the citizens sufficient “alone time” to reflect on issues, it triggered their return to preexisting beliefs or uncritical adherence to the views of cunning politicians. Hastiness was the antithesis of deliberation, whose aim was to help people distinguish between what they wanted and what was right, or to understand whether what they wanted was right.28 To sum up: Condorcet’s goal was to prevent extemporaneous decisions or “imprudent participation” by both the citizens and their representatives, who were just as exposed to ignorance, sectarian interests, and the intemperance of passions as the masses. Imprudent participation meant both identification of the “sovereign will” with spontaneous (as lawless) expressions of the will and influence of the legislative process by sectarian interests. Both factors threatened the generality of the law and the universality of citizenship: the former because it subjected decisions to the unreflective mood of the moment, and the latter because it 183

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exposed state institutions to the schemes of vested interests and select segments of society (Condorcet’s main targets were the hegemonic influence of Paris over all the other departments and that of the clubs or parties over the representatives).

The Secularization of Origins: Democracy as a Time-Regime Condorcet’s idea of legalizing the revolution derived from his conviction that there was no legitimate sovereign outside the legal form—not even the will of the people, which outside agreed-upon common rules and procedures was nothing more than the utterance of a multitude of individuals or associations of individuals, and as such held only a caract`ere priv´e.29 Yet in making political activity into rights and the law, he gave the constitution a normative function that was creative, rather than merely regulatory. Both the right of repeal and the deliberative strategies he devised to reconcile reason and numbers (rights and voting) presumed confidence in human learning and the persuasive and stabilizing power of dialogue and the political process. Each citizen’s right to initiative was meant to stir a national debate on specific issues and force all citizens to interrogate their own reason according to the r`egles g´en´erales they had chosen to follow.30 The goal of a democratic constitution was to order the process of public interaction within which the citizens developed, changed, or corroborated their judgment without coercion or manipulation. As constitutio libertatis it was a process of permanent innovation from the bottom up in the attempt to preserve the founding principles of republican authority.31 In a Kantian move, Condorcet retained Rousseau’s identification of sovereignty with the law, but grounded the law in a “general will” that was in fact an idea of reason and the expression of judgments “susceptible of rigorous demonstration.” His insistence on regulating every aspect of politics has been the main focus of criticism; yet procedures and “legal means” were for him a way to purge democracy from pure command, extralegal actions, or sudden decisions. So although he retained Rousseau’s usage and described sovereignty in terms of will, he actually focused on the processes that preceded and followed the moment of decision and therefore transformed the issue of sovereignty into an issue of opinion formation, reflection, revision, and amendment. In his model of democracy, all state actions, no matter whether they sprang from the citizens

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or their representatives, could “no longer” be thought of in the form of “command,” but only “reason.”32 The right of constitutional revision was thus more than the reflection of a historical moment (acknowledging the demand to legalize institutional experimentation within a country unaccustomed to constitutionalism). Like Paine and Jefferson, Condorcet explained its reasonableness with the argument of antityranny (shielding present and future generations from the unchecked power of past generations) and the argument of fallibility (foreseeing and regulating cyclical changes in order to make institutions and the laws more receptive [perfectionnement] to rights). Constitutional revision was rooted in the idea that reason was prone to error and needed to presume permanent revision.33 Reason was the name of both the norm and the goal of action, of both a form for action and reason in action. Accordingly, rights were simultaneously preservative and progressive, an acknowledgment of the fact that reason could make and revise mistakes. (What Baker called the “sociology of error” was Condorcet’s philosophical translation of his important intuition that “an equal right of all to the truth [is] the most fundamental of the rights of man.”)34 In sum, representative democracy reflected the dual movement of rationality as an actuating procedure (form for action) and a critique of its outcomes (reason in action).35 Perpetual innovation (Paine’s “perpetual stamina”) is the maxim that inspired Condorcet’s plan, which can be rendered in terms of the puzzle he posed to himself: “How to legalize the revolution?” As we saw at the end of the second chapter, the most recurrent criticism of democracy has been, and still is, that it is doomed to either despotism or anarchy because political autonomy is essentially subversive of all laws people do not directly approve or have approved in the past. Democracy is exposed to the problem of presentism, or the authority of the present as the time dimension of the will, which it cannot solve without violating its own principles. Condorcet’s plan aimed to refute this view. In early June 1793, after his constitutional proposal was rejected and a few weeks before H´erault de S´echelles’ text was approved, he wrote an extraordinary piece “On the meaning of the word Revolutionary.” He discussed the paradigmatic problem of all revolutions: “When and how to end a revolution?” When “a country achieves liberty through a revolution,” and “this revolution is decided but not terminated,” it runs two opposite risks: rushing to make laws that repress political and civil liberty in order to put a quick end to lawlessness and prevent new upheavals (counterrevolution); or refusing to stabilize the political innovations brought about by the revolution with the result that permanent 185

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revocation of the laws becomes the rule (permanent revolution). The former invoke sagesse, the latter revolutionary z`ele. De facto, both parties are destabilizing zealots because they presume an inherent antithesis between legality and legitimacy; an antithesis that they solve either by interrupting or slowing the democratic process by strengthening the executive and the coercive apparatuses, or by making democracy an immediate expression of majority will. Both parties are equally blind to the fact that “moderation is not always wise,” while an absolute devotion to “the most just of all causes” does not always serve a just cause. Politics is essentially a matter of governing temporality. “Reason must be firm without being abrupt, systematic without being dogmatic, inflexible and rigorously precise in all that is permanent, indulgent and moderate in everything that must last as long as it is necessary to achieve a new ruler.”36 Is there a constitution that can ensure that legality is not gained at the expense of democratic legitimacy, and security at the expense of liberty? Is there a constitution that can anticipate and regulate change, govern innovation while neutralizing justifications to resort to arbitrary measures and invoke the exceptional? (“Sur la n´ecessit´e, l’excuse des tyrans.”)37 An example of constitutional finesse, Condorcet’s plan entailed thinking of constitutionalism as the end of an era in which political stability was achieved by binding popular will to undisputable foundations. The religion of the lawgivers was the ancients’ strategy to give lasting validity to their constitutions: an act of worship that precluded interpretation and thus put a limit to revocation. Modern constitutions marked the end of the idea that the political order is valid in any absolute sense and the erosion of any source of legitimacy—be it tradition, transcendence, or aristocratic honor—that is beyond dispute. As Rousseau’s contradictory choice of resorting to a divinely styled lawgiver in order to give stable authority to a political order that was based only on individual agreement showed, the principles of equality and consent rendered the myth of the lawgiver anachronistic.38 In revising Plato’s dictum that “fables are necessary to make them [the people] bear the truth,” Condorcet thus concluded that the politics of the moderns is ungrounded and human reason is the only reliable source of impartiality and justice: “systematic opinions are perhaps the only mythology that fits enlightened times.”39 The revolutionary experience of the American conventions was the highest example of antifoundational politics and the secularization of the origins; the evidence that perpetuity could be in the process but was not in the origins. “Today’s legislators are simply men, who cannot give to other men, equal to them, 186

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but laws that are transient like them.” Irrevocability would be “a crime against the rights of man.”40 The “myth” of the moderns lay in the preamble of their constitution—the declaration of rights as a guide to legislation (and its perfectibility). Thus the challenge of a democratic constitution is, on the one hand, to secure the law without making it the object of passive acceptance or, on the other, to shield it from the risk of sudden recalls: “nobody can contend that perpetual laws can legitimately exist; yet it would be equally unreasonable and dangerous to contend that all laws can be revoked at any moment (`a tous les instants).”41 The two forms of constitutional amendment Condorcet conceived (a direct right retained by each citizen and a routine right or general revision every twenty years) were intended to guard against the possibility that the citizens would become apathetic and “indifferent” and not use their right of revision voluntarily.42 Spontaneous will was unreliable anyway. Specific procedures were needed to activate the will of the citizens artificially so as to counter not only hastiness but also the civic apathy that political tranquility, he believed, would inevitably encourage. In sum, if institutions and the laws were to be left open to innovation because no law was above consent, then the citizens could neither be forced to passively obey the laws, nor be induced to obey them out of an “enthusiastic” zeal. They had to understand the meaning and value of legality. They had to understand that laws were to be obeyed even when they changed their minds and withdrew their consent, and that their obedience did not mean worshiping the status quo.43 The role of time in politics was the true challenge of the moderns, whose legislative process had to anticipate ob´eissance provisoire.

Indirect Despotism There were several phases in Condorcet’s political education in democratic constitutionalism: critical investigation of the causes and forms of despotism; study of elections; the democratic adaptation of the plan of local assemblies devised by his mentor Turgot; and careful analysis of the Constitution of Pennsylvania (his model in writing the 1793 constitution) and the Federal Constitution.44 He gave priority, however, to the study of despotism and the means to prevent it because it was the specter of the tyranny of the many that induced his contemporaries (and ours as well) to mistrust democracy, and to exile the people from the institutional process of deliberation. Hence it was by examining the many 187

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forms of despotism old and new that Condorcet rescued democracy from its traditional reputation for unleashing irrational passions in the masses, revised the meaning and exercise of sovereignty, and integrated represented and direct forms of deliberation and controlling functions. In contemporary language, one might say that Condorcet’s democratic republicanism revolved around a negative rather than a positive aspect of political liberty and a view of sovereignty primarily as resistance to tyranny and the threat of tyranny rather than the enactment of political autonomy. The concern motivating his constitutional plan was the risk of an erosion of the democratic foundation of representative institutions, and he did not think elections had sufficient deterrent power. Although he did not ignore the chance for despotism by la populace, he saw the people more in terms of an object that could be manipulated by the few rather than as an autonomous (headless) agent of despotism.45 He classified four kinds of despotism in terms (respectively) of the number of despots (either one or a few) and the method they used to exercise their arbitrary power (either direct or indirect). The association of aristocracy and despotism was unique particularly when we recall that Montesquieu based his theory of moderate government on the preservation of aristocratic forms of society and politics and defined representation as a modern version of aristocratic distinction. Traditionally, the term oligarchy was used to designate “degenerate” government of the wise few or aristocracy in the classical sense, not tyranny or despotism. Yet Condorcet used the expression “despotic aristocracy.” Of course, the subtext of his argument was the antiaristocratic polemic that dominated the political debate in France during the Revolution. What interests me however is to reveal the political and institutional mechanisms he was able to develop by applying the category of despotism to representative government. Condorcet related “despotic aristocracy” not only to “direct” forms of arbitrary power but also, and more importantly, to an essentially modern phenomenon he called indirect despotism. Indirect despotism was a form of arbitrary rule that presumed (because violated) a basic condition of consent by which means the subjects had agreed to obey, or be represented by, those they saw as dignified, worthy, honest, or competent. Regardless of why people consented (that is to say, whether they consented in the name of a religious belief or a political conviction or wisdom and competence), consent was essential for the evaluation of indirect despotism. It could be tacit (as in the case of the lay members of the Catholic Church in relation to their priests) or express (as in the

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case of representative lawmakers in relation to the citizens). Indirect despotism presumed an electoral system and denoted a degenerate form of representative government. The agent of this new kind of political despotism was the parliament, when it ceased to represent the citizens in its entirety and became trop in´egale in relation to the general opinion: the despotism of “the legislative body takes place when the people are no longer truly represented or when it becomes too unequal” to them. Whereas direct despotism could be prevented or stopped by relatively simple means, which consisted in entrusting “the representatives of the people” with legislative functions rather than mere consultation, the prevention of indirect despotism required a more complex approach because the disciplinary object—representation—was itself complex.46 Representation is an institution that entails advocacy and protection of the represented from the power of the state. Since the English constitutional revolution in the seventeenth century, political leaders and theorists have used the protection argument against the absolute monarch when they advocated representation (and a division of legislative power between parliament and the king). The enigma of representation emerged the moment the revolutionary phase was over, and the parliament successfully replaced the king as holder of the highest power.47 In France, it emerged in 1789 during the first constitutional debate. The question then arose of how the citizens, given the double nature of representation (both as state institution and the expression of popular opinions), could protect themselves from their protectors, so to speak. Differences between nondemocratic and democratic mechanisms of control emerged when the issue of protection was raised against elected representatives, no longer the king.48 They emerged—in fact, modern democracy emerged—when the threat was indirect despotism by the elected few rather than the direct despotism by a nonelected one. On the one hand, theorists of representative government like Montesquieu, Madison, and Sieyes thought that only nondemocratic strategies could control representative institutions founded on suffrage, such as for instance the checks and balances among the state’s macro-powers, the nonelection of the executive, and (as in Sieyes’ case) the violation of political equality both by distributing the right to vote unequally (distinction between active and passive citizenship) and by distributing political functions unequally (only the representatives must hold the deliberative power). On the other hand, Condorcet sought devices that could check

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the legislative function of the representative body within the deliberative process itself, and in this way he tried to give Montesquieu’s criterion of moderate government a democratic twist. He made representative democracy a complex system of institutional mechanisms of control and surveillance whose aim was to prevent parliamentary majoritarianism without violating the democratic principles of electoral consent, political equality, and majority rule. Condorcet foresaw both the possibility of constitutional amendment and the possibility of disagreement over the interpretation of the constitution in the legislative process. In the former case, as I have already mentioned, he resorted to periodical conventions and the ongoing possibility of revision via referendum. In the latter, although he did not institute judicial review or a separate body to be entrusted with the authoritative power of controlling the legislature, he nonetheless contemplated a complex strategy of deliberation that had the function of resolving disagreements of constitutional interpretation. Before analyzing these multiple strategies, it is essential to first clarify Condorcet’s understanding of political deliberation as a work of judgment.49

The Syllogism of Democratic Constitutionalism Condorcet was the first scholar and political leader who consciously tried to devise a democratic theory of the constitution—a constitution, that is, that was rigorously based on political equality, the principle of collegiality in decision-making, and the priority of the legislature, whose task was that of moderating democracy by democratic means.50 As I shall show in the following sections, he pursued this goal by working on political temporality. Condorcet’s constitutionalism was meant to be a viable alternative to both Rousseau’s immediate sovereignty and Montesquieu’s deterministic conception of the law. The latter was actually his most ambitious and important target because of its relativistic implications. “Why, in his Spirit of the Laws, does Montesquieu never speak of the justice or injustice of the laws he mentions but [speaks] only of the motives of those laws? Why did he not establish any principle to teach how to distinguish, among the laws promulgated by a legitimate power, those that are unjust and those that conform to justice? . . . Never an analysis, a discussion, or a precise principle but only one or two examples which, for the most part, prove only one thing: that there is nothing as common as bad laws.”51 Montesquieu’s constitutionalism could not guide 190

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legislators toward laws that “conform to principles of natural right” because it did not offer any normative criterion to judge between just and unjust laws. From the epistemological point of view, democratic constitutionalism is a denial of moral positivism because it presumes evaluative standards (rights and equality) that are not causal-functionalist. The theory of representative government as electoral aristocracy has in common with Montesquieu more than the idea of representation as competence. It has in common the identification of politics with the functioning logic of the macrostructures of power, and the disdain with the “ought to” approach to political legitimacy. Rejecting the juristic conception of law, which derived legitimacy from the will (divine or human), Montesquieu treated political regimes as objects of natural science and made the longevity of institutions a scientific criterion of evaluation.52 Like Newton with celestial bodies, he thought that the law must indicate “the necessary relations deriving from the nature of things” independent of moral considerations. Montesquieu’s aim was to discover the foundations of social phenomena that did not derive from conscious and uncontrollable motivations (human or divine).53 His law did not say that “man has an obligation to feed himself,” but that man does in fact feed himself.54 To paraphrase Hegel, the norm of the actual was predicated on endurance; history was the tribunal of political regimes, not “natural rights” or the will.55 Condorcet’s criticism of Montesquieu’s deterministic normativism can be seen as a prelude to democratic constitutionalism insofar as its aim was to make consent the basis of legitimacy, without however anchoring the “ought to” on the fact of the will.56 In a word, Condorcet challenged Montesquieu but did not go back to Rousseau. The syllogism analogy was his rendering of the legitimacy issue and a reply to both moral positivism (Montesquieu) and will positivism (Rousseau). The theoretical insight of his constitutional plan is that politics is a work of interpretation or political judgment. It is a deliberative syllogism that requires and rests on some shared principles or general criteria or rights, the trust in procedures, and beforehand the belief in individuals’ cooperative and trustworthy commitment to a common political enterprise. Most important, it presumes that citizens do not hold an identical interpretation of the general interest.57 “We do not ask that people think like us; but we desire that they learn to think by themselves. We do not want to teach a political catechism; instead, we want to submit objects of discussion to those who are interested in them and have to judge them.”58 In language that is familiar to contemporary 191

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theorists of democracy, he thought that the task of deliberative procedures consists in neutralizing ex ante the impact of arbitrariness in lawmaking. Condorcet’s immediate source of inspiration were the works of the main representatives of the juridical Enlightenment—Voltaire, Turgot, and above all Beccaria, whose On Crimes and Punishments is a keystone of the theory of collective decisions.59 Condorcet’s personal friend and most admired legal theorist, Beccaria based his justification of habeas corpus and fair trial on two crucial premises: the delimitation within the legal domain of the spheres of legislation, application, and enforcement of the laws, respectively; and the depersonalization of the act of judgment. The principle of depersonalization in relation to the “preferences” and “emotions” of the judge (hence the claim that forensic cases must be based on verifiable facts and testimonies) led Beccaria to conceptualize judgment in the court in terms of a syllogism of the first figure: “In every criminal case, the judge should come to a perfect syllogism: the major premise should be the general law; the minor premise, the act which does or does not conform to the law; and the conclusion, acquittal or condemnation.”60 Condorcet applied Beccaria’s model to political deliberation. The syllogism paradigm entails two kinds of (constitutional) constraints on deliberation, one of domain and one of cogency. The former pertains to the distinction of and hierarchy between legal orders (constitutional and ordinary), while the latter pertains to the application of the procedures of deliberation. Deliberation in democracy can be defined both as a constraint on the issues that can be made an object of political decision and a constraint on the public reasoning of political actors.61 It requires both these levels (and thus a form of indirectness) no matter whether it is implemented in a direct form or a representative one. The crucial conclusion that representation is not a violation of democracy but, to repeat Paine, a perfection of it comes as a recognition that direct democracy also presumed some “fixed laws” to judgment and action, although it was unable to exhibit them in stable form.62 Condorcet applied his early ideas about judicial decisions to his 1793 plan. His application was logically coherent because, from a procedural point of view, both judicial and political decisions pertained to deliberation within contexts from which chance cannot be entirely eliminated and the probability of error is equally as high as that of success. Despite his rationalism, he was as aware as Aristotle of the fact that deliberation was very different from a scientific syllogism because it always dealt with probability. Beccaria had raised this issue in discussing deliberation 192

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from the perspective of whether it was possible to make rules for juries in which the probability of not condemning an innocent man was as high as possible.63 Following Beccaria’s model, Condorcet interpreted democracy as the system that better allows for an extension of the jury method of reconciling numbers and reason to all kinds of public voting because it is based on counting individually separated votes according to the rule of majority.64 The elector can be treated like the judge not because he/she is expected to be impartial like a judge, but because both of them are supposed to use deliberative procedures that presume fallible actors who judge according to the same criteria but independently from one another, and who decide on issues that apply to everyone equally.65 Rousseau’s maxim according to which just decisions are decisions that conform to “reason and justice” is thus the maxim that inspired Condorcet’s idea of deliberation.66 The problem is that the syllogism analogy challenges the politics of the will, which cannot tell us much about the nature of the law except that the majority wants it. “When the people of Athens passed a law which decreed the death penalty for those who broke statues of Mercury, can such a law be just?”67 Rousseau would agree with Condorcet, but his theory of legislation did not provide for any strategy to counter the will of the assembly. I would say that although identical to Rousseau’s at the foundational level (the law or justice as impartiality or nonarbitrariness), Condorcet’s interpretation of sovereignty as an expression of judgment and construction through public opinion was actually a far cry from Rousseau’s model. To conclude, the rationale of Condorcet’s theory of democratic constitutionalism is that a legitimate law resembles a collective work of interpretation that relies upon “general propositions” of independent validity (rights are “an independent truth”) and seeks an outcome that is general in its substance and authority.68 All the citizens can reason and shape their reason in this way. All can understand their rights and apply them correctly, and are able to judge the laws and the representatives.69 Reasoned opinions can be the object of indirect as well as direct liberty and can be carried on and “represented” by others without this entailing a curtailment of the freedom of those who do not directly make the laws. “Thus, the citizens do not submit to the will but to the opinion of the national assembly; they submit to it because believe that the decisions of the assembly are made in agreement with reason,” or they result from a “mode of reasoning” that judges on specific cases from the same (constitutional) angle.70 193

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Democratic Moderation and the Principle of Collegiality Rosanvallon coined an oxymoron to describe Condorcet’s constitutionalism: “liberal Rousseauian”; but one could also invert it into democratic Montesquieuian.71 Whatever the formula one chooses, there is no doubt that Condorcet made a considerable effort to devise mechanisms of decision and control that did not subvert the basic democratic norms of legi-centrism, collegiality, and the emanation of all state powers from (the consent of) the citizens. In this session I shall briefly analyze these norms so as to set the ground for a critical understanding of democratic deliberation and the representative process. In a recently published letter to Sieyes written in early July 1791, Condorcet proposed two approaches to the issue of legitimacy that I would label respectively as constitutionalism and responsiveness. Of the two, he thought that only the latter interrogated state powers in terms of both their organization (division and limitation) and responsibility toward the citizens.72 Condorcet’s refutation of the mono-archy logic materialized into two crucial norms: the direct responsibility of all political magistrates to the citizens, and the collegiality of the executive. Both norms prefigured a democratic revision of the model of representative government. They rested on the conception of suffrage as a right, not a function, and resulted in a flexible mandate and the reconciliation of the decisional autonomy of the elected with their dependence upon citizens’ consent. I shall devote the following sections of this chapter to the analysis of these fundamental aspects of democratic representation. In this section, however, I will focus essentially on the principle of collegiality since it was an explicit confutation of Sieyes’ decisionist assumption that competent and effective decision-making requires “unity of view” and a unified or “unique” agent.73 Like Paine, Condorcet employed the argument of collegiality to counter the critics of democracy’s claim that a single person’s “uniformity of action” could achieve better results than cooperation among varieties of expertise and knowledge. “It is quite wrong to believe that uniformity of action and opinion is dependent solely on there being a single overseer. Reason and experience have shown that we can retain these advantages with just a small number of overseers. It may be far more difficult to find a man who combines the strength of mind required to base all his actions on the same basic principles, and to apply himself both to questions of great importance and to matters of detail, than to find men who possess these qualities in a lesser degree, but who are still quite capable of exercising more limited functions.”74 194

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The challenge Condorcet accepted to deal with consisted thus in looking for a democratic solution to Montesquieu’s problem of moderation, to prove that strategies of control and limitation could be attained within a system in which all government power emanated directly from the citizens.75 In particular, his rejection of the mono-archy logic translated into two intertwined institutional mechanisms: the direct election of the members of the executive, and the creation via democratica of a National Jury whose job was to judge ministers the National Assembly had proposed to impeach.76 His acephalous constitutional democracy prefigured legislative superiority but not “dependent servility” of the executive on the legislative. Indeed, the representative assembly had no power to nominate ministers or to indict them. Its control over the work of the executive was political, not legal; it oversaw the decrees (the only authoritative norms the government could enact), not the ministers. If we link together Condorcet’s criticism of Montesquieu’s moral positivism and the collegiality principle we may grasp the spirit of his democratic constitutionalism: the limitation of powers can be more effective when it consists in a strategy of diffusion within the political system of a plurality of small counter-powers (the basic and ultimate site of control being the individual citizen) than when it consists in the canonical checks and balances between state macro-powers. The basic conditions of both better decisions and the security of freedom lay in the multiplication of the instances and the sites of sovereignty. The real challenge to democracy was thus to organize collegiality in a way that could neutralize the pernicious effects of ignorance, demagoguery, and corporate interests. At first glance, this approach looks like James Madison’s in that it also shares the basic concern with how to make liberty secure in a large country.77 However, Condorcet did not make divide et impera into a federalist rule but proposed a true political pluralism of voices and instances within the unitary process of deliberation. Moreover, he did not interpret the proliferation of the centers of counter-power as solely a division of labor among state institutions. On the other hand, Condorcet’s collegiality principle has been associated with the Montagnards’ ideology of the despotism of the assembly.78 However, his opposition to bicameralism pointed to two solutions whose goal was to attain outcomes that were just as secure as bicameralism’s: one pertained to the mechanisms of deliberation and the other to the mode of voting. Condorcet’s third way between representative government and radical democracy was achieved by intervening over the deliberative process in order to make it as indirect as possible. Representation was among these strategies of indirectness, although not the only one. Equally 195

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important were the multiplication of the sites of debate and a complex system of time delays. Rather than creating two deliberative assemblies elected by different constituencies and electoral methods, Condorcet articulated the function of deliberation in the representative assembly in terms of small subcommittees that examined and discussed legislative proposals.79 The assembly in its plenary session had to vote twice, first to decide whether to admit a given proposal to discussion; and second (and finally) to decide whether the proposal would become a law. The first decision of the assembly pertained to the “simple reading” of the new legislative project, followed by distribution of the written text and deliberation. After an established interval (one of the several regulated intervals in Condorcet’s constitution), each article, amendments, and additional proposals would be debated, and if the text passed for deliberation, the bureau (cabinet) of the assembly had to report to the general assembly within fifteen days. In its report, the bureau could decide to shorten the period before the beginning of the final stage of deliberation and also propose an alternative project. The latter solution would trigger a new debate. In any event, there could be no deliberation if the proposal was not formalized (the written text was mandatory) and debated according to the prescribed delay. The established intervals between the different levels of discussion could not be violated unless the assembly itself decided otherwise. Haste had to be justified and approved because it was the exception, not the rule.80 The mode of voting in the representative assembly was Condorcet’s additional mechanism of control. His plan required qualified majority and the open ballot in cases in which the assembly wanted “to declare a matter urgent and dispense with the legally prescribed intervals” of deliberation.81 Although these procedures were known in ancient democracy too, Condorcet deduced them from his study of jury decisions, cases in which, given the fifty-fifty chance of a wrong answer to a yes/no question, there was good reason to prefer one of the opposite decisions (not to condemn an innocent person was preferable to acquitting a guilty one).82 Hence he proposed to resort to the open ballot and a two-thirds majority of the voters in cases where the assembly wanted to deviate from ordinary deliberative procedures and invoke “exceptional circumstances.” We should now be in a position to assess Condorcet’s opinion on bicameralism. He did not a priori exclude this system of control, but distinguished between types of bicameralism and in so doing made an important contribution to democratic constitutionalism. Before the novelty of the American experience, thanks also to The Spirit of the Laws, England 196

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was the example of bicameralism Europeans were familiar with; it was anathema to the democrats, and to Condorcet until at least 1790.83 Yet in his 1793 exposition of the constitutional plan, he conceded that bicameralism was an important check over majoritarianism but claimed that the English model was not the best possible version of bicameralism. Democrats had to and could envisage their own version of bicameralism. At any event, given the fulfillment of the democratic principles of the equal right of eligibility and suffrage, the permanent division of “a single assembly” into two assemblies that debated and voted separately was a method that threatened “neither freedom nor total unity of power.” Yet his choice between mono- and bicameralism seemed to be circumstantial rather than principled. It was preferable that France, a country that had experienced a “rapid passage from despotism to freedom,” from aristocracy to equality, should not adopt bicameralism. Yet the circumstantial argument sounded like confirmation of the idea that a divided assembly was more likely to be exposed to aristocratic minorities. In any event, moderation in power holding and security of freedom could be achieved without resorting to Montesquieu’s antiegalitarian form of bicameralism and, furthermore, without instituting a judicial power that was separate from and located above the legislative power. Bicameralism could not solve the problem of bad decisions since it neither questioned the size of the deliberative body nor discouraged corporate interests, two factors that, along with hastiness, Condorcet considered, as we shall see, the real threats to good decisions.

Democratizing Deliberation If we follow Condorcet’s general idea that representation is a solution to immediateness, not an antithesis to democracy, we can interpret representative democracy as a comprehensive system of mediated sovereignty: “nobody wants a bill read by one deputy in the assembly to be submitted to an immediate vote and become a law that obligates 26 millions of persons.”84 Mediation in relation to time and space suggests a view of politics as an integrally collective construction and exchange of opinions and arguments in view of always revisable consent. Condorcet was the first theorist and political leader to thoroughly define deliberation and put it at the center of public life and, moreover, to do so in a political document, not a scientific tract. Furthermore, he was the first to understand and give constitutional form to the idea that the circulation of the political judgment from civil society to the 197

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state makes representative government democratic. No one understood it better than Carl Schmitt, perhaps the most coherent enemy of representative democracy: “In view of the system of a Condorcet . . . one must truly believe that the ideal of political life consists in discussing, not only in the legislative body but also among the entire population, if human society will transform itself into a monstrous club, and if truth will emerge automatically through voting.”85 The meaning of the word deliberation is complex and not to be confused with the rationalist twist it was given by its traditional critics, like Schmitt, and in recent years by proponents of the discourse theory of democracy. In its Latin origin, deliberare means “deliverance” or “bringing to life,” an act that is associated with a more or less long and laborious process. In politics, deliberation is associated with pondering, consultation, and finally a resolving in the plena perfectio of the law. It is also associated with a kind of reasoning that takes into account the utility (in rationem utilitatis) of the subjects who deliberate and the communication of the deliberators both within themselves (pondering) and among themselves (consultation).86 Its end is not supposed to be decision alone or voting. In fact, deliberation is not meant to impose a decision but to achieve it. This is what “deliverance” means: to put into existence or make manifest something the interlocutors have inside (which means that the interlocutors need to form their conviction before giving their vote). In any case, although a decision can be made without deliberation and although it can end in majority/minority divide, the assumption of deliberation is that a deliberated decision has more chance of being a good one and thus command rational conviction precisely because of the trial-and-error process it went through. For all these reasons, in the rhetorical tradition, wherein it was first conceptualized, deliberation is conceived as an activity proper to a politeia or res publica and belonging to the genus demonstrativum (it does not simply makes decisions but affects the interlocutors’ minds so that they can express their final say and together decide). Both qualities are directly correlated since public exposure to reasons is decisive if consent is to be sought through discourse. However, there is no necessary correlation between deliberation and political equality, or between deliberation and politics as a public forum. In early modern states and principalities, the prince and his ambassadors deliberated about how best to wage a war or pursue a diplomatic mission, but were careful to avoid publicity. Until the revolutions of the eighteenth century, deliberation was associated with a frank discussion among equals in wisdom, or the few, and with circumspection or discretion. 198

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There have been two collective strategies of legislation (and extracting generality): voting without or with deliberation. Rousseau, like Harrington before him, proposed the former and overcame the first of the two obstacles to equality. He democratized the will (the decision), but when it came to deliberation (judgment), he followed Montesquieu and an honorable tradition of republican thinkers who thought that the mixed constitution should be the model of government because it required the senators (the few) to discuss the public business among themselves and the people only to vote.87 Finally, with representative government, elections circumvented the (negative) effect of equality by using consent to create the institutional space for deliberation. “The body of representatives of a great people deliberates in the same way as a very small people completely assembled together in the public square.”88 To say it briefly, deliberation has traditionally been the task of the competent few; it excluded political equality as well as public exposure. Condorcet’s democratic daring consisted in overcoming this second barrier to equality. Where Rousseau democratized voting, he democratized deliberation also. As we saw, Kant pointed out that even one enlightened ruler could prudently intuit the general will, a maxim whose rationale Condorcet accepted. His jury theorem presumed that a decision is good when it is made by a truly enlightened, impartial person reasoning as if he were legislating in the place of and for the whole nation. However, by introducing public judgment into democratic structures, Condorcet overcame the antiegalitarian flaw of the German philosopher’s argument. He tried to make the as if scheme guide the exercise of the right of sovereignty enjoyed by all citizens. One might say that Condorcet made the entire nation into what it was in fact—a people of representatives—because he gave all of them the chance to decide on public issues as if the whole nation decided through each of them.89 The inclusion of judgment in the faculty of the sovereign (hence its egalitarian extension) casts light on the nature of political right. Whereas Sieyes kept civil or natural and political rights rigorously separated, in Condorcet’s writings they overlap since the droit de cit´e belongs to everyone as much as “natural rights” and its exercise does not need any special competence or precondition.90 As far as theory is concerned, his position was in principle democratic even before he converted to democracy since he always approached the issue of government from the point of view of the best conditions for deliberation (his meticulous attention to elections was almost unique among his contemporaries). Yet his political radicalization (the 1792 democratic turn) coincided with the abandonment 199

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of contractarianism and the criticism of the polarization between a theoretically limitless freedom that was antithetical to the law and the need for state coercion for reasons of peace and security.91 Condorcet characterized the idea that laws are “not the necessary consequences of the nature of men and their rights” as a “prejudice” and certainly detrimental to representative government because such a view would seem to deem as “sacrifices those very rights that are necessary for the common utility.” In a truly democratic and antiutilitarian move, he turned to equality to justify the limits to liberty and the “need” for law—but after having defined liberty as the power to do “all that is not contrary to the rights of others; hence, the exercise of natural rights of each man has no other limit than those that assure other members of society their enjoyment of the same rights.”92 The limits to liberty resided within liberty itself insofar as liberty belonged equally to all as a right that could be enjoyed safely within a constitutional order. Representative democracy takes on the unmistakable guise of a theory of liberty whose norm is not prior to the law but within a just law.93 This gives rights a double identity: as moral values to be preserved against institutional power (the will of the legislative majority in particular) and as moral claims that can be deduced from human nature but require political institutions to be enforced and promoted. It defines also the nature of a declaration of rights and of citizenship. It makes the former a constitutive act whereby individuals “confederate” to face the limits of their natural powers, live according to “reason and justice,” and obey laws made in conformity to their shared rights.94 On the basis of this egalitarian condition, citizenship can be seen both as a legal status and a learning process; it has both a formal identity and a political-civic one.95 Enjoying political rights has psychological and moral benefits insofar as it can strengthen people’s consciousness of their “not being dependent.” Both in the case of the “right to sovereignty” and that of individual rights, legal entitlement to them is a basic but not a sufficient guarantee of their enjoyment.96 Some of the functions making up the constellation of the “right of sovereignty” must be exercised directly to retain an awareness among citizens of their value. In his report on the constitutional plan, we read that freedom is equally endangered when citizens do not delegate the management of their interests as when they “abandon” the preservation of their rights to others. Citizens must be guaranteed “a way of preserving, in its greater extension, the enjoyment of their right of sovereignty. Even in a representative constitution, it may be useful for there to be a direct exercise of this right, to remind the citizens of its existence and reality.”97 200

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How does this egalitarian premise conform to the selective function of elections? Election is one moment in the continuum of political action that involves citizens and representatives, and although Condorcet thought elections should reward the most competent candidates, he conceded that the conception of suffrage as a right was, in and by itself, a contradiction of any aristocratic aspiration. Even if natural rights “are known in general by all those who have a right spirit and elevated mind,” they are essentially possessed by all people who do not need any special knowledge to enjoy them; just as with basic individual rights, no limit on suffrage and eligibility that contradicts the principle of equality can be admissible.98 Besides, there was another reason why suffrage was not a function: although when voting for representatives the citizens made a judgment of ability (at least because they discriminated between different candidates), the outcome of the vote was decided by an egalitarian criterion such as quantity.99 “It does not always have to be the worthiest men who are elected if we are to abolish all these flawed institutions. . . . We simply need to ensure that the plurality of the votes will always be obtained by men who have a perhaps mediocre, but sufficient, amount of the qualities necessary to fulfill the functions entrusted to them”; these are the “precautions required to preserve the rights of the citizens.”100 Thus, although it is the outcome of a selection, political representation does not create an aristocratic-like divide. Representative democracy is not a subspecies of mixed government if by it we mean that which Montesquieu meant, that is to say a government in which inequality (social and political) is a condition for a limited and moderate government.

Multiplying the Times and Places of Deliberation The Thesaurus Linguae Latinae Lipsiae quotes Cicero to explain that cogitation (cogitatio) implies avoiding haste and renders deliberation less prone to error. The Oxford English Dictionary specifies that deliberative reasoning is time-consuming and assists participants to cool their passions and increase their ability to make sound decisions. “Intuited” or impassioned decisions are the antithesis of deliberation and, moreover, are decisions made by individuals and groups that have forgone communication. One of Condorcet’s most basic and important strategies of constraint (and freedom) was to allow for the passage of time before a decision was made. Representation and the election cycle made lawmakers and 201

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citizens think twice. Freedom of the press and freedom of association as well as (very detailed) deliberative procedures allowed both citizens and representatives to submit their opinions to the opinions of others. In so doing, they gave others more reason than the mere fact that they hold an opinion to subscribe to their view.101 The unity of decision was permanently reconstructed as the product of the multiplication of the times and places of politics. To my knowledge, no major modern political theorist before him (and very few after him) had thought that assemblies of ordinary citizens could practice deliberation without endangering the liberty and stability of the political order. Despite the impression of aristocratic rationalism stressed by his interpreters, Condorcet believed that “the argument that the citizens could not take part in the whole discussion and that each individual’s arguments could not be heard by everyone else can have no force.” The issue, he reasoned, was not one of competence but of good procedures and places in which people could deliberate together.102 Thus he devoted the first part of his exposition of the constitutional plan to a description of the technique of deliberation, its steps and stages, its times and time limits. He depicted it as a circular march that starts from outside the government, reaches political institutions, ends temporarily with the vote of the representatives, and returns to society, from where it starts its path all over again since the citizens have the right to propose abrogative referenda or new laws. Deliberation occurs in collective or collegial gatherings in multiple stages and at multiple times. It is not the exclusion of the many that gives some certainty that the result will be good but good “legal means” of deliberation together with a broad educational system and distribution of material opportunity to citizens’ participation and freedom of opinion and association. One of his most important innovations, and in fact the insight that makes Condorcet so relevant to our democratic time, consists in the inclusion of both informal and formal “types” of discussion within the category of deliberation. The informal type “does not require everyone to come together in the same assembly, and can in fact be conducted just as well, and maybe better, in writing”; but the formal type “could not take place outside an assembly without becoming very time-consuming.”103 The former comprises the broad work of opinion formation and judgment expression in newspapers, private homes, political clubs, social movements or associations, and everywhere people have the opportunity and leisure to meet and exchange views. This type of deliberation occurs according to the rule of voice, so to speak, not vote; its 202

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goal is to allow people to understand an issue and clarify their views. It does not have an authoritative efficacy but is crucial in the formation of the judgment that the citizens will then express in the act of voting. The formal type of deliberation, instead, must end with a vote and thus requires that discussion occur according to standard rules, focuses on procedurally defined topics, and takes place in legally defined times and spaces. Condorcet does not rule out, and actually suggests, that the primary assemblies in which citizens meet to vote operate in silence, and on some occasions he sees as highly preferable that there “should be no debate in these assemblies.”104 This is an important element that casts light on the complexity of democratic deliberation, which is a kind of political work that combines interaction and individualism, cooperation and personal decision, listening and talking. Deliberation is a collegial way to induce individuals to make their own decisions together and not according to their own private interest, although according to their individual reasoning. This makes the combination of discourse and silence essential, and just as necessary as time delay. Condorcet did not evaluate on procedures with a priori judgment (for instance, when he argued for secret ballot, he appealed to circumstances and prudence, means to ensure a better course of action). There were, however, circumstances in which voting must be public. For instance, votes in the legislative assembly had to be public because citizens had to know how their representatives behaved in order to judge them. Or, when citizens met to choose candidates, it would be preferable if they voted in public because their votes served to draw up the candidate lists and were not yet final decisions. As intermediate decisions, open voting could be an important aid to deliberation since opinions had to be exchanged and be widely known in order to become the subject of further discussion. Citizens’ votes had to be secret only when they were authoritative or when they elected representatives and voted in referenda. Condorcet chose secrecy for security reasons in order to protect individuals from the risk of persecution.105 No matter what form the result takes, the logic is the same in both the informal and the formal type of deliberation, and is meant to help transform opinions from plurality to unity. The public “clarification” of ideas starts with an informal exchange of views, when the merging of individual opinions or the changing of minds is the result of “personal” and spontaneous decisions, rather than majority vote. After “another debate,” the “question becomes clearer” and the opinions “less diverse,” as they begin to “combine into a smaller number of more general 203

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opinions.” Deliberation starts with many I’s to gradually produce some We’s and finally concludes with one approving We. The “general will” is thoroughly a process of filtering “personal” and “partial” views. Like wine-making, deliberation begins with raw materials to gradually achieve a point of commonality that although different from the original elements, is not so absolutely different as to be unrecognizable. Moreover, all participants in the deliberative assembly can recognize themselves in the decision and claim it as their own achievement even if the vote is not unanimous. Condorcet thought that filling the space between individual citizens with places for deliberation (primary assemblies, as we shall see) was essential for creating the symbolic unity of the nation and making the citizens accept laws passed by majority rule without being or feeling oppressed. It was in fact a means of keeping the sovereign judgment permanently in action and the citizens creating the representativity of political institutions and the legitimacy of the laws. The “general will,” as it were, was born of a series of shocks between citizens and the representatives: this was the concrete meaning of the expression “enjoyment” that Condorcet attached to the right of sovereignty.106 In his mediated republic, like in Rousseau’s immediate one, the role of time is central. But whereas Rousseau thought that in order for citizens to be protected from their own vices, no time should elapse between a proposal and a vote, Condorcet thought the exact opposite. Slowness was the anti-Rousseau perspective that allowed Condorcet to unify the several forms of control that he built into his constitution. Whereas Rousseau recommended immediate voting and no discussion in the assembly, Condorcet stressed that it was crucial to separate the several phases that contribute to the formation of the law. He proposed several strategies to articulate discussion or political temporality. First of all, as for the legislative process, he separated scrutin de pr´esentation and scrutin d´efinitif within the assembly in order to make room for a (scrupulously regulated) interval between the legislative proposal and the vote itself. This separation was mirrored by the separation between the scrutin de pr´esentation and the scrutin d’´election or the election of candidates and that of representatives. In both cases, the aim was to make the citizens free, during the prescribed interval, to propose the repeal of the law or to check and revise their ideas about the candidates. As a matter of general consideration, the oversight function of time delay was consistent with a notion of sovereignty and legitimacy based on judgment and rights. In “the interval” between those two moments, the

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most unique aspect of a democratic society becomes visible and active, both in the form of civil and of political rights (“members can, of course, debate freely in the assembly rooms”).107 The motivation behind Condorcet’s reflective and mediated democracy was to make deliberators (representatives and citizens) think twice.108 The outcome was the simple question Rousseau discussed in his Social Contract: the yes/no proposal to be voted on. Political scientists have focused essentially on this moment of decision in Condorcet’s theory of voting, and predictably included it within Rousseau’s decisionist model. They have somehow missed what makes it original and unique, and in fact truly democratic—that is to say the care he showed in administering or organizing the space and time of deliberation. The difference between representative and nonrepresentative democracy is the difference between deliberative and nondeliberative politics: although the act of decision is common to both (the will is the final aim and the mark of authority), the process toward it varies greatly. To see this difference we should follow Condorcet’s thought, and focus on the way the yes/no questions are produced because this illuminates the transformation of the conception of the general will.109

A Cooperative Enterprise A strategy of simultaneous limitation and actualization, of time delays and the diffusion of spaces for deliberation, are the two axes along which Condorcet suggests we should rethink sovereignty within and for a representative context. They combine containment and action since their purpose is to interrupt a given course of action, initiate supplementary action or communication among actors, and unify the complex work of sovereignty, which belongs to “the universality of the people,” who express it in multiples times and places. Allowing for “reflective examination” by preventing “the dangers of excessive haste” would give citizens the opportunity to achieve a common view. “Delays are stated for each of the operations” and defined in relation to the topics—not all decisions can be achieved through the same process and in the same time. “If they [the citizens] sit for too long, they may be reduced to a rump of lazy and consequently dangerous members. And if they are left too much to their own devices, they must be led astray. We therefore took care to include every possible means of preserving the natural utility of these meetings.”110

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We can derive from Condorcet’s constitutional plan three arguments, which I propose to call interactive ability, time limitation, and selective competence, respectively. The fundamental principle of democratic public life is “equality of natural rights, which is not hostile to the kinds of differences that arose from the free expression of individual faculties.”111 Just like civil society, an ordered political society can only emerge as the result of cooperation/ competition among all the subjects composing the nation. Individuals’ interactive ability (the product of their fallible nature) allows them to overcome their personal limitations. They cooperate with one another in two basic ways: by creating procedures ad hoc, or simply by such extemporaneous and accidental contingency as occurs in free discussion in informal gatherings. In any event, deliberation reflects the human epistemological condition and seems to be more generalized than the ability to make decisions in a condition of perfect or heroic isolation. (As per Aristotle, good deliberation in collective gatherings is less uneven than good deliberation by a single ruler; decently good single-ruling regimes are more difficult to attain than a decently good polity.) The second argument (time limitation) points to the fact that political deliberation must end; moreover, it is made to end in a vote. This implies two subsequent and important things. First, for an issue to be voted on it must be rendered as a simple question; thus all issues that pertain to public matters, even the most complicated ones, must be framed in such a way that they can be made accessible to the general understanding. (The framers of the constitution—or of the regulation of the representative assembly—play an important role since they shape the conditions for more or less accessibility.) Second, and finally, the fact that all political deliberations must come to an end and that they must come to an end by a vote means that talking cannot go on forever and finally that no individual is in principle supposed to achieve an encyclopedic knowledge; it is enough that each has some knowledge about specific issues. The issue of time limitation (deliberation-for-sake-of-decision) brings to the fore a topic Condorcet did not discuss nor perhaps foresaw: namely, the use of time as a political weapon by the participants in the deliberative process. In a system in which the regulation of time becomes such an essential factor, the subversion of time limits or the filibuster constitutes a new front of political conflict, a tool of offense/defense by obstruction in the hand of the minority.112 This brings us to the third argument: deliberation excludes the existence of a concentration of knowledge somewhere or any perfectly competent actor(s). Since decisions must be made, information and 206

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deliberation must stop somewhere and some degree of ignorance or incorrectness or error in knowledge must be presumed. What is important is that all have “constant and free access to all means of instruction available.” All should be capable of acquiring and have the material resources to acquire the critical knowledge they need to deliberate, but each should then be free to choose the method of learning and the issue she would like to know more about. “In order to decide in full knowledge of the case, it is not necessary that a person reads all that has been written on a given subject or knows all that other men have thought about it in order to make a sound decision. . . . Experience has shown that men who tried to read everything that had been written on a particular subject, or to hear all the arguments which had been put forward, ended up quite unable to come to a decision.”113 The voluntary nature of the right to propose that a law be repealed goes with Condorcet’s cooperative assumption because the fact that any citizen can start a repeal process means that any citizen can chose to “specialize” selectively in any issue and can put her expertise at the service of the whole community. Political equality and participation in deliberation do not entail that all citizens specialize in all the issues, have the same knowledge, and know things in the same way. Thus whereas Sieyes used the criterion of division of labor to separate active and passive citizens, Condorcet used it to complicate the work of legislation and profit from the specialization and competence of all. Time delay and diffusion of knowledge and deliberation in space were expressions of an egalitarian perspective. All the citizens, both when they meet directly in their local assemblies and when they meet as representatives in the national one, exercise similar functions according to the same norms.114

Primary Assemblies and the Special Terrain of Politics In the liberal formulation of the representative system, elections account for its undemocratic character because they legitimate government without giving any “institutional role to the assembled people.”115 They disassociate the entitlement to, and the exercise of, political right, liberty, and power, and discourage collective action. Federalist 63 argues that the republic of the moderns and democracy have little in common since the former institutionalizes “the total exclusion” of the people “in their collective capacity” from all state power. In 1789, French delegates passed a decree ordering assemblies of voters to dissolve “as soon as elections have 207

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taken place” and forbidding citizens “to form them anew” unless new elections were called.116 The act of voting was a discrete act and must be performed in a condition of rigorous isolation, not only secrecy. Apparently, popular participation in the deliberative process is not only or simply technically unfeasible but also incompatible with representative institutions, and representation is not merely an expedient way, but actually the best way to manage collective decisions. The American Federalists’ position is illuminating since they explicitly recognized that collective decisions require that people meet, not simply vote. Hence, direct democracy in small gatherings was the decisionmaking model they applied to the representatives, who were in fact not supposed to vote in isolation like the electors, but be assembled in the same place and deliberate together before voting.117 Primary assemblies were Condorcet’s most important attempt to revise this view and implement indirect democracy. Alien to our contemporary political experience but not to our conceptual horizon and historical memory, they deserve to be examined not as a historical remnant but as the product of the institutional imagination that the democratic ideal has inspired since its early inception.118 Indeed, they were meant to transform the abstract space of the legal nation into a network of physical sites within which citizens could set up a deliberative dialogue with the broader nation. “If the people want to conduct elections or exercise their rights of sovereignty in their separate assemblies, then reason demands that they rigorously follow previously established procedures.”119 Primary assemblies were physical sites (neighborhood headquarters open seven days a week, and in particular on Sundays in order to accommodate working citizens’ needs) where any citizen could go to consult the official bulletins of the legislative activity of the national assembly; to present her proposal to amend an existing law and submit it to discussion and vote; to vote on proposals coming from other assemblies; or simply to select candidates and vote for representatives. They gave the direct presence of the citizens a balancing function by keeping the positive and the negative powers of sovereignty (legislation and repeal) within “the forms the law itself has prescribed” in permanent relationship.120 They also had the civic and symbolic function of politically unifying the multitude of independent citizen-electors, a function that in Sieyes’ model was held exclusively by the national assembly. Primary assemblies reflected the uniqueness of political rights, which are rooted in the individual will and reason (are equal in their distribution) yet affect the lives of all other citizens because they are an 208

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expression of power.121 Condorcet mixed voice and silence, the individual exercise of political and civil rights and its performance in company of others, because he saw political suffrage as both a right of individuation that distinguished the individual from the demos and a collective right that brought the members of the demos to collaborative interaction. Primary assemblies reveal the double nature of suffrage and the deliberative character of politics: they allow for communication that gives each citizen a chance to make competent political decisions; yet they are consistent with the individual character of suffrage; and while they allow for public deliberation, they ensure that the act of resolution is performed in silence and secrecy. People qualified for primary assemblies by their citizenship and their residence (one year of residence was enough for a person to acquire citizenship rights). This conveys the two characteristics of democratic identity, which is general and universal in its inclusiveness and yet locally and concretely specific for the participation it entails and the needs it reflects. One might say that the two conditions for assembly membership testify to Condorcet’s dissatisfaction with Sieyes’ legal fiction of the nation and the abstract identity of the elector. Primary assemblies collected the sovereign opinion from the particular places in which the citizens empirically lived and formed their opinions. Yet they were not local or particular in character. The purpose of their local aspect was to link the citizens to the political life of the national community and vice versa, not to federalize the sovereign or particularize the general law. As I mentioned in the previous chapter, both the Montagnards and Sieyes accused Condorcet of smuggling federalism into his plan. Those accusations were unfair because Condorcet’s plan was based on a sharp distinction between the prerogatives and functions of the primary assemblies and those of the administrative assemblies.122 Comparison with previous plans can clarify this important aspect. Condorcet’s proposal for primary assemblies was not his own invention but drew on an existing French tradition, and particularly Turgot’s prerevolutionary proposal for reform of the municipalities. Yet he made some crucial changes to Turgot’s model regarding the purview of the assemblies (political, not merely administrative) and the manner in which representatives were to be elected (directly rather than indirectly). However, he derived the three basic functions he ascribed to the primary assemblies from that model: creating the conditions that allow the will of the representatives to “conform” to society (principle of representativity); making local knowledge a resource in the creation of the political agenda and an element of the “true interest of the nation” (principle of 209

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circularity and participation); and preventing corporate interests from taking over the national politics (principle of equality).123 Condorcet’s original intuition was that in order to escape the dilemma of federalism, democracy in a large state should consider profound administrative autonomy in order to give residents the right channels for dealing with local policies and keep the national agenda free of the “local and particular interests.”124 He denied that the administrative departments were representative and, on the other hand, that the representative assembly was a collection of local issues. By separating the political (national) and the administrative (local), Condorcet acknowledged Rousseau’s fundamental norm that citizenship is the impersonal agency of the law, and meanwhile tried to reconcile the large space of representative government with the small space of political participation. The year before the Revolution, Condorcet wrote two important essays: an enthusiastic commentary on the American constitutional conventions, and a pragmatic proposal for a political reform that would align France with the democratic transformation. The former outlined a theory of political representation; the latter attempted to apply that theory to a country that did not yet meet the basic conditions of political representation—namely, individual rights and legal equality.125 The American experience taught him that political representation performs two functions: on the one hand it creates the legislative body, and on the other it unifies the body of the nation through an ascending process of sovereignty construction. In 1788, Condorcet thought his country had to focus on the latter and to gradually achieve the former. It is not his opinion on the democratic immaturity of French society that interests me, though. What I would like to stress is the fact that he did not narrow the function of political representation to institution creation. Representation was a political process that set the sovereign citizens in motion through the exercise of their civil and political rights. Its unifying function was both the outcome of one process (election) and the inception of another (reconstruction of the sovereign body fragmented by individual rights). The system of primary assemblies accomplished this reconstructive task. It set in motion a circular relation between the periphery and the center and gave the citizens the “legal means” to democratically limit and influence state power. Primary assemblies constituted an attempt to translate spatial geography into political geography. Whereas simultaneity in space and time was Rousseau’s requirement for legitimate decisions, in Condorcet’s case simultaneity referred to the effects of the exercise of political rights: no assembly, neither the local ones nor the national one, acted “each 210

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by itself” or contained or impersonated the sovereign, or imposed its opinions on the rest of the country.126 Every time a primary assembly deliberated, the result of its deliberation became the object of scrutiny by and in the other assemblies. Like a stone thrown in the water, any decision created a wave of deliberation. No act of the will was absolute and unique because sovereignty did not reside exclusively in the will but in the judgment over the pronouncement of the will. Condorcet tried to solve Rousseau’s dilemma of spatial limitation by making each assembly’s act of deliberation reflect itself in the action of the other assemblies. In this sense popular sovereignty is representational and fictional, rather than holistic and substantial. It is fictional not in the sense that it is unreal, imaginary, expedient, or pure illusion, but in the sense that it does not have a simple or unique physical location or a body, individual or collective, nor does it have a privileged space and time.127 It is fictional because it resides in the maxim of generality that inspires the judgment of all political actors and in the circular processes that like a permanent current links each citizen to the representative institutions through the laws, the only real object of political intervention. Simultaneity describes the dur´ee or time span, not the immediacy of the decision or the space wherein the decision acquires the character of the law. It pertains to the influence and reflective impact that any decision has over the entire political system. This is what makes modern democracy unique. Unique to modern democracy is the intermediary network of communication that can reunite the actual dimension (parliament) and the deferred dimension (voters) and that makes it able to enjoy what made Athenian democracy exceptional—the simultaneity of “standing” and “acting.” Thus, although primary assemblies apparently recall Rousseau’s ideal of direct rule, they actually reveal an astonishing difference from Rousseau’s theory of sovereignty, which presumed that associations and exchange of opinions hindered the understanding of the general will. Condorcet’s intuition was that a polis based on the equal right to vote had to promote a special terrain of politics—a terrain that could and should be distinguished both from the state and from civil society. Enfranchisement and electoral rights create political atoms, not citizens who develop programs and ideas. Without political means of aggregation, “the sovereign would still be free, but would become mute”; in the twentieth century, political parties played the role of unifiers, a role that was “undoubtedly not formal (officieux) yet indispensable” to an electoral regime.128 Condorcet’s primary assemblies expressed the demands 211

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of political spaces that aggregated opinion and were linked to society without being corporate organizations of interests. Like his contemporaries, Condorcet did not look to the party as an intermediary aggregation between the citizens and the state. However, he did introduce an important distinction in interpreting the detestable esprit de parti that can be legitimately seen as an early specification of the role of the modern party in representative government. Deliberation excludes both inequality of representation (this is the trust of the principle of one head/one vote) and symbiotic constituencies because its outcome is expected to be the “general law,” not a truce among untransformable (group) identities or interests, as we saw in previous chapters. Yet according to Condorcet the esprit de parti was not in and of itself negative if it sprang from or referred to political associations as “momentary” and voluntary unions of citizens that had not become “independent of the enthusiasm that produced” them. Although he did not take this reflection any further, he saw political divisions as fundamental aspects of representative government, an articulation of opinions and interpretations that did not question or annul the “common rule.”129 On the other hand, he was unconvinced by the elitist justification of representative government, which held that “since none of the two parties will change its mind” (chacun des deux parties restant dans son opinion), deliberation must be the work of some “impartial men” (hommes impartiaux).130 Condorcet paid serious attention to the electoral mechanism and tried to organize it so as to achieve the least “unsatisfactory” result. The 1793 constitution contains none of the references to the competence of the elected that appeared in the 1785 essays. The purpose of the electoral scheme he proposed in his plan was to ensure that each vote had an equal weight and the outcome of the election reflected the choices of the voters as closely as possible.131 Representativity (the outcome of elections should not be trop in´egale from the view of the citizens) was the goal the electoral system had to fulfill, not only the selection of a body of lawmakers. If representation was supposed to set a reflective correspondence between individual judgment (of the citizens) and the results of elections, then the claim that deliberation was the work of few hommes impartiaux looked highly questionable. But, once “impartial men” were ruled out, how would Condorcet respond to Madison’s challenge of extracting the general interest from a pluralistic society (or the plurality of opinions) without curtailing individual freedom? His answer pointed to an originally democratic solution. Rather than placing his faith in the virtue and knowledge of some citizens or an elected aristocracy, and thus 212

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concentrating democracy only in the electoral moment, he turned his attention to the institutional spaces within which citizens could exercise their free and voluntary rights of sovereignty.

Sovereignty of Surveillance Condorcet conceived the constitution in view of guaranteeing the citizens the “right to resist a law that is evidently unjust although promulgated by a legitimate power.”132 His plan was set out to prove that what gives the sovereign an active political presence and security against the decision of the majority is not so much electoral authorization of lawmakers or direct ratification of laws as r´eclamation, a right that operates over representatives’ work and follows a rigorous and regulated course of judgment. Censorial suffrage was not just a pragmatic answer to an exceptional moment—finding a way out of the status of permanent repeal enacted by the Revolution. It was above all an essential strategy in the anti-Montesquieu plan to make a “moderate regime” through democratic means because while it preserved the checking mechanism within the democratic space of the droit de cit´e, it challenged the competence of the elected and reasserted the priority of political equality within representative government.133 As elections were not the only verdict of the people, so decision by the representative assembly was not the only authorized voice of the general will. Condorcet’s constitution gave the citizens the power to stop a law before it was promulgated or to repeal it afterwards. The right to repeal ordinary legislation was essentially censorial and signaled sovereignty’s Janus face in a representative democracy, as both the act that made laws enforceable (positive power) and the (legally defined and regulated) counter-power of oversight and rectification (negative power).134 A form of control that complemented the checking function of delay in deliberation, the right to repeal brought Condorcet’s intertwined ideas of conceiving the sovereign power in the negative and extending the notion of despotism to representative government to their natural conclusion. Direct and indirect forms of political activity were intrinsically related and made his proposals “a testimony of a politics of reason instead of a politics of the will of the people” within which “reason” means citizens’ capability “of judging and criticizing.”135 But what kind of sanctions can the citizens use against their representatives once they have delegated the power of enforcing decisions? In Rousseau’s model, since sovereignty meant essentially ratification, 213

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despotism was identical with representation. In Condorcet’s model, however, a clear (and useful) distinction between representation and its despotic “degeneration” can be made. But the question of “how democratic” a representative system is cannot be answered by focusing merely on procedures of control within state institutions nor can it be derived from questioning the legal status of the representative or by reviving the traditional dichotomy of free and bound mandate. Actually, this is a false dichotomy because, as I have explained throughout this work, political representatives are not nor can they be mere delegates. Moreover, juxtaposing strict delegation and free mandate means judging representative institutions from the perspective of immediate democracy yet again.136 What’s more, the imperative mandate is not a strategy of power limitation and thus cannot be used to counter despotism. The theory of sovereignty as will teaches that imperative mandate is the only secure way to bind the power of the delegates to the sovereign. Its logic holds that one will checks another. The paradox is that the will-against-will mechanism actually leaves no room for a limited will. Indeed, at the bottom of imperative mandate there must be a superior will that cannot be further limited if it is to bind the will of the elected. Although it is invoked as a strategy of binding, the task of imperative mandate is not to contain power but to distribute functions within an unlimited sovereignty scenario—judgment to the delegates and the will to the sovereign. Imperative mandate is a way to make the absolute power of the will effective and operational, not to control or moderate it. A representative constitution can solve the paradox of the imperative mandate by forcing lawgivers to situate the source of the binding in the right place, so to speak. Indeed, it cannot locate it in the will (of somebody) anyway. It cannot locate it in the will of the electors because representatives are supposed to make decisions, not just give opinions; and it cannot locate it in the will of the representatives for the obvious reason that they would then be the sovereign. In fact, the only true “imperative mandate” resides in the limits set by the constitution: rights themselves and deliberative procedures serve as the force that binds. Representative democracy makes the law sovereign because it disassociates sovereignty from the actual source of command (the persona ficta of Bodin and Hobbes) and turns it into a comprehensive political process whose goal is the actualization of the principle of equal liberty. Condorcet translated the sovereignty of surveillance into the “legal means” to repeal and included it in the Declaration of Rights as the right “to resist oppression” (art. 31). There is oppression when “the law 214

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violates natural rights, civil and political, it should guarantee”; when “the law is violated by public functionaries in the act of implementing it”; when “arbitrary acts,” or acts that are “contrary to the expression of the laws, violate the rights of the citizens” (art. 32); and if the generation that wrote the constitution prevents future generations from revising, reforming, or changing it (art. 33). The right to repeal ordinary and constitutional laws was the “legal means” that instituted the negative power of the citizens (title VIII of the Constitution). Of the two forms of repeal, it is that of ordinary laws that established the democratic element of control over the representatives (since, as I have already explained, the members of the convention were not representatives, but pure redactors). Unlike Sieyes, who classified all state officials as well as the members of both the constituent assembly and the legislative body as representatives and thus did not admit any distinction between the will of the representatives and that of the citizens,137 Condorcet used the term representation only in relation to the elected members of the legislative body because, contrary to the deputies in the constitutional assembly, they were expected to be in a relation of political communication with the society and the opinion of the citizens who judge them in reason of that relation. The right of repeal applied directly to “all the laws, and generally to any acts of the legislature that were against the constitution” and had two effects: that of dissolving the National Assembly and that of imposing a pause (a term limit) on the right of the representatives to be reelected. Any citizen could start a motion of repeal. If the motion received fifty votes from a primary assembly (whose members could not number less than four hundred fifty and more than nine hundred), it could be examined in the assembly. At that point, if the majority decided that the motion should be considered then the assembly had to submit it for approval to all the assemblies of the department, and finally to the National Assembly. This could result in two possible scenarios. If the National Assembly voted against the repeal proposal coming from the primary assemblies, the issue went back to the latter, and if they reconfirmed their previous vote, the former would automatically be dissolved and new elections called; moreover, the representatives who had voted against the repeal proposal could not be reelected in the next legislature (but could be reelected in subsequent ones). On the other hand, if the National Assembly decided to repeal the objection of the primary assemblies, then those assemblies had the right to impugn the decree of repeal and demand a national referendum. If the referendum reversed the decision of the National Assembly, new elections were called and 215

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the representatives who had voted against the objection of the primary assemblies could not stand in the following election.138 Condorcet’s complex proposal tried to link together the repeal of ordinary laws and the dissolution of the representative assembly that passed them. The purpose in combining these strategies was to assess both accountability and the role of elections. Whether we agree with his proposals or not, it is undeniable that the logic inspiring them is a challenging guide for the understanding of representative democracy. Elections, when associated with the right to call on new elections, are not simply meant to designate new representatives but to check over their representativity. Their real goal is in fact to construct and reconstruct or “re-establish an accord between the citizens and the national representation that was broken.”139 When the ideas of the people and of the representatives are “too unequal,” the representativity of the legislative body is challenged and should be restored. Condorcet restored it by resorting to the primary role of the citizens, his assumption being that if the citizens judge a given law negatively (or if their judgment differs greatly from that of the representatives), they indirectly express also a negative judgment about those who have supported it (the vote of the representatives should be rigorously public). The delicate problem he faced was that of devising procedures that could answer the following question: How can a representative democracy make room for people’s negative power without turning into direct democracy?

Breaking and Restoring Trust Rousseau’s analysis of the tribunate in chapter 5, book 4, of The Social Contract was probably Condorcet’s guide in devising his own answer. In defining it as the “greater” power, Rousseau pointed to the difficult task of regulating the negative power so that it did not have enough force to “undermine everything.” Relying upon this premise, he thought that the censorial power must be located outside both the executive and the legislative. This “is precisely what makes its own [the tribunate’s] power the greatest. For although it is unable to do anything, it can prevent everything” (car ne pouvant rien faire il peut tout empˆecher). The paradox of Rousseau’s negative power is that it can find its procedural location only within an indirect or representative system. The Supreme Court is an obvious candidate. However it is also possible to see it as an anticipation of Condorcet’s solution because in ascribing the legislative function (which engenders “provisional obedience”) to 216

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the representatives, Condorcet liberated the citizens of all governmental burdens; he made the sovereign unencumbered and thus the best candidate to be the judge. Indirectness or the power of judgment makes the citizens the natural repository of the negative right to repeal a law and the guardians of their rights. They exercise the power of surveillance both formally and informally or by appointing and judging lawmakers and by judging existing laws and law proposals, and through their civil rights or by public criticism and advocacy through the media, a free press, and the political movements. Citizens’ negative power is, Franck Alengry wrote, “the peaceful insurrection of reason and reflection.”140 In regulating it so meticulously, Condorcet pointed to the need of remedying for the absence of legal channels through which the voice of the public opinion could influence the representatives. Although he “did not like the word” counterpoise (which belonged to Montesquieu’s vocabulary), his power of censure was a true counterpoise between the represented and the representatives insofar as “although sovereignty is effectively located in the former, it can do nothing without a work of interaction with the legislative body.”141 Condorcet’s implementation of negative power reveals his two different readings of elections: on the one hand, they are the means that allow citizens to judge whom they are supposed to choose as lawmakers as well as the means that allow them to judge the behavior of the representatives; on the other, they are oriented both toward the future (voting on the promises made by the candidates) and the past (assessing what the represented have actually done). The literature on representative government points out that, from a legal point of view, the electors can only use the latter function to control the elected. “Voters thus influence public decisions through the retrospective judgment that representatives anticipate voters will make.”142 A form of control that complemented the checking function of delay in deliberation, in giving the citizens the negative power Condorcet signaled the limits of elections in making representatives accountable. “But should not the conditional obedience to laws made by representatives provide some remedy for the latter’s errors or schemes, beyond simply changing these representatives at fixed intervals and limiting their power through constitutional laws which they cannot change?”143 In answering this question, Condorcet added an important caveat to the canonical view of electoral democracy by breaking the electoral cycle. He did not violate the representative requirement though, because he chose to punish deeds (law proposals and passed laws) rather than intentions, and acted, as we just explained, on the time factor. He pursued the line of 217

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retrospective control and remained within the limits of representation. He did not endorse delegation a` la Rousseau or a` la Marx. He suggested a revision that was an explicit admission that regular elections were insufficient protection against the potential for “indirect despotism” or simply against bad laws. The dissolution of the representative assembly as an effect of the negative right of the citizens was the product of the principle of circularity between extraparliamentary and parliamentary spheres. It prefigured a conception of political mandate that allowed for some form of control over the representatives but did not fall into the principal/client form of contractual delegation. Although representatives could not be subjected to any legal mandate, they could and should be subjected to a political mandate. If representatives are to be judged, there should be a norm of “good” representation. As I argued in the first chapter, this norm can be rendered as a sympathetic circuit between the opinion of the citizens and those of the representatives—wherein “opinions” are not atomistic preferences.144 Condorcet proposed a solution to the problem Rousseau’s theory of delegation could not solve: reconciling the autonomy of the representatives in the act of the decision with the liberty and equality of the citizens. In fact, he was the first thinker to explicitly raise the issue of a normative form of accountability that could either maintain or resuscitate (the necessary) currents of opinion between citizens and representatives. His proposal pointed out that election for a fixed term can be a significant obstacle to accountability. As Juan J. Linz has written in examining the limits of presidential democracy, the rigidity of the electoral term limits accountability because it breaks the current of continuity between the inside and the outside of the state. “The political process therefore becomes broken into discontinuous, rigidly determined periods without the possibility of continuous readjustment as political, social, and economic events might require.”145 As we have seen in analyzing Rousseau, the direct manifestation of the sovereign will does not exclude delegation or election, which, on the other hand, does not necessarily create representation. Rather than election per se, the crucial difference between direct and representative government is that the former does not allow for electoral terms and the delegates can be recalled at any moment. For the sovereign to preserve its will, the delegates must be stripped of theirs. Theorists of representation resort essentially to the strategy of fear to solve the problem of representatives’ freedom. In order for this strategy to work, no part can have either unlimited power to threaten, or unlimited freedom. Elections held at regular intervals leave both the electors 218

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and the elected some space to maneuver. Beginning with the Federalists, this has become the golden argument in defense of representative government, and the argument that categorically excludes the formalization of imperative mandate. If a delegate knows in advance that she can be recalled at any time, fear would paralyze her rather than make her act prudentially or efficiently.146 This is the argument that has induced theorists of representative government to associate imperative mandate with direct democracy. Sieyes’ general theory of the division of political labor aimed to prove that there is no point in having elections if the citizens are supposed to continually check the elected. Since representation is a strategy of substitution and a functional division of competences, forms of direct check by the citizens would annul the benefits representation is supposed to bring about. Since electoral deterrence is an a posteriori strategy of control that operates at fixed intervals, it does not require ongoing supervision by the electors. By freeing the citizens from direct political engagement, it fulfills the main goal of the government of the moderns, which consists, as Sieyes argued, in letting the people enjoy their private freedom. But neither Sieyes nor the authors of the Federalist Papers devised a principled counterargument to flexible electoral terms. Their arguments were based on convenience or utility, and stressed the advantages of stability. Unlike Condorcet, their implicit worry was an overactive citizenry, rather than indirect despotism. The question Condorcet posed can be rendered as follows: Given that only actions, not intentions, can be the object of judgment and censure, is it possible to integrate the post hoc sanction instituted by regular elections with a different kind of threat, one that acts on the procedure or the rigidity of the electoral cycle? Except for the extreme measure of impeachment, which Condorcet also adopted, is it possible to give the citizens what representative assemblies have today, that is, a kind of vote of confidence? Political mandate seems to comply with flexibility more than it does with rigidity. Acting on a ratified law and calling for new elections are blocking methods consistent with a system of control that complies with the representative principle because they are obstructive and negative rather than affirmative and positive.147 Moreover, they do not act directly on the will of the representatives, who are not, therefore, transformed into the mouthpieces of their clients. Democratic controls on representation, like the ones Condorcet invites us to conceive of, reveal dissatisfaction with the idea that citizens must bear the consequences of bad politics before they are allowed to punish those who are responsible for it. They bespeak the intrinsic limits 219

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of a mere post hoc strategy and the effective control allowed by elections. Electoral deterrence works only if the representative wants to be reelected. If he plans to serve only one term, the citizens are left with the hope that he has some civic virtue and honesty or does not have the support of the majority in the assembly. This means that the logic beneath electoral deterrence within fixed electoral terms is essentially antidemocratic since it entails the expectation that there will be no temporal limit on reelection. In principle, what is good for representation is bad for democracy, which excludes lifetime elective positions.148 This explains why democrats have expressed their skepticism and even dislike for retrospective accountability ever since the inception of representative government. The most radical of them, James Mill, suggested two strategies to block bad decisions: a fairly large number of deputies, and short electoral terms.149 The Athenians, whose popular juries were so large that not even the richest citizen could realistically buy a favorable verdict, were well aware of the preventive function of numbers. The logic of short electoral terms is also clear: its intention is to capitalize on memory. Even if the presence of strong and free public opinion works against short public memory, the longer the intraelectoral interval, the more a representative can rely on short public memory (political scientists know that unpopular laws are generally made at the beginning of the electoral term). The short electoral mandate strategy indirectly confirms Rousseau’s doctrine since it implies that representative democracy should approximate direct democracy as closely as possible if representatives are to be accountable. However, in the short electoral term strategy, too, the constraint on the will of the elected works only on the condition that the representatives are never in the position of serving the last term. Frequent election alone is not effective if the elected do not want to run again. In fact, there seems no other way to impose on the elected a choice they do not want to make unless they are the mouthpiece of the electors. Rousseau had good reason to use slave/master language to describe what he thought was the only admissible form of representation—for representative government not to be an aristocracy the representatives have to be “enslaved.” Condorcet tried to solve this riddle. Faced with the choice of either imperative or free mandate, he chose the latter, but not until complementing it with the right to repeal existing laws followed by the call for new elections. In sum, he proposed a strategy of oversight that would act indirectly on the will of the representatives and could actually impact the legislature without violating the principles of representation.150 220

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Although imperfect, complicated, and impractical, his proposal is still one of the most imaginative and challenging ones produced since the inception of constitutional democracy. The important conclusion to be derived from his attempt to make the political right of the citizens an agent of control and surveillance is that democracy cannot infiltrate the representative system by taking freedom away from the representatives. The entire system of deliberation, inside and outside the state institutions, must be conceived and organized according to democratic premises in order to find a middle way between unconditional delegation and delegation with instructions.151 From this perspective, representative democracy appears indeed as a unique form of democracy based on a complex notion of the right to sovereignty and an ongoing relation between parliamentary and extraparliamentary moments. In contemporary democratic societies, the search for political means of control over the work of the representatives seems to have declined along with the decline of political ideology and the political party and the growth of the politics of personality and religious affiliations and the omnipotence of videocracy.152 If atomized electors cannot play positive political roles as citizens, they cannot make elections play the role of control. To conclude, representative democracy can be described as government that shows the dual nature of popular sovereignty as a constitutive guideline to, and a limit on, political power as legislative power. This was the premise Condorcet relied upon when he articulated the comprehensive exercise of sovereignty into souverainet´e d´elegu´ee (the function of ratifying ordinary laws) and souverainet´e de surveillance (the revocation power held by the citizens). Since political rights are the condition for the construction of the decision-making process, not a contractarian artifice (or function) for the creation of state institutions, delegated power is not the only context within which deliberation can be exercised. Political rights render all citizens agents of consent, both when consent is requested to institute an actuating function and when it is a revocation function.

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Conclusion: A Surplus of Politics This book has inquired into the conditions that make representation democratic, a mode of political participation that can activate a variety of forms of citizen control and oversight. I have argued that representative democracy is an original form of government that is not identical with electoral democracy. Rather than use a polemic strategy, I tried to illuminate the unquestioned assumptions about immediacy and existential presence that underwrite the idea that direct democracy is always the more democratic political form and representation an expedient or second best. I built on the seminal works of Hanna Pitkin and Bernard Manin to demonstrate that political representation is a circular process (susceptible to friction) between state institutions and social practices. As such, representative democracy is neither aristocratic nor a defective substitute for direct democracy, but a way for democracy to constantly recreate itself and improve. Popular sovereignty, understood as an as if regulating principle guiding citizens’ political judgment and action, is a central motor for democratizing representation. I used a genealogical approach to illustrate this theory of representative democracy. Indeed, scholars of political institutions agree that the main tenets of representative government were established in the eighteenth century in order to curb democracy and build a limited and therefore responsible government. The picture I drew shows that things are bit more complicated. The idea of representative 223

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government as intrinsically unique has produced two distinct schools of thought. The first endorsed a view of representation that combined elitism in political institutions (the only site of both deliberation and voting) and popular legitimacy (located in voting as electing), wherein the former was the domain of competence and the latter the domain of consent. In this view, representation is founded on the principle of the division of labor and a functional selection of expertise. The second school of thought was explicitly democratic and aimed to avoid concentrating the source of legitimacy in state institutions and narrowing popular consent to an act of authorization. In this view, representation is founded on the theory of consent that views election as the expression of the right to participate at some level in lawmaking, not as a method for transferring people’s idiosyncratic preferences to selected political professionals. Since the eighteenth century, theorists of representative democracy have proposed situating representation within a complex mix of deliberation and voting, formal authorization and informal influence that involved both citizens and representatives. Rather than a scheme of sovereignty delegation, they saw representation as a political process that connects society and institutions. A democratic theory of representative democracy entails a revision of the modern conception of popular sovereignty that challenges the monopoly of the will in the definition and practice of political liberty. It marks the end of a yes/no politics and the beginning of politics as an open arena of contestable opinions and ever-revisable decisions. This amplifies the meaning of political presence itself because it makes voice its most active and consonant manifestation and judgment about just and unjust laws and policies its content. One might say that political representation provokes the dissemination of the sovereign’s presence and its transformation in an ongoing and regulated job of contesting and reconstructing legitimacy. Hence, although electoral authorization is essential in order to determine the limits and responsibility of political power, it does not tell us much about the actual nature of representative politics in a democratic society. Elections “make” representation but do not “make” the representatives. At a minimum they make responsible and limited government, but not representative government. Representation activates a kind of political unification that can be defined neither in terms of a contractual agreement between electors and elected nor resolved into a system of competition to appoint those who are to pronounce the general interest of all. A political representative is unique not because he substitutes for the sovereign in passing laws,

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but precisely because he is not a substitute for an absent sovereign (the part replacing the whole), since he needs to be constantly recreated and dynamically in tune with society in order to pass legitimate laws. On this ground, it is correct to say that democratization and the representative process share a genealogy and are not antithetical. Judgment and opinion are just as much sites of sovereignty as the will if we assume that sovereignty consists in uninterrupted temporality and the incalculable influence of basic ideals and principles concerning the general interest that transcend the acts of decision and election. This reflection has led me to argue that representation stimulates a surplus of politics in relation to the sanctioning act by which the sovereign citizens confirm and recapitulate with cyclical regularity the deeds and promises of candidates and representatives. Representativity and advocacy are the expressions of this surplus and mark the unavoidable bond the electoral process activates between the inside and outside of the legislative institutions. In sum, political representation helps us in two respects: from a theoretical point of view, it illuminates the place and role of judgment in politics; from a phenomenological point of view, it changes the perspective of time and space in politics. Representation’s mediated character highlights the temporal dimension of politics, an aspect that is essential to democracy yet one that has not been sufficiently studied. The difference between direct and representative democracy pertains essentially to the norms and rules of political temporality. This difference is internal to democracy though, and points to the superior capacity of representative democracy to stitch together the different temporal layers of politics and stabilize the process of revocation (of laws and decisions) that characterizes democracy. Whereas immediacy and physical presence are the requirements of nonrepresentative democratic government, multitemporality and presence through voice and ideas are the requirements of representative democratic government. In the former, the will devours politics in a series of discrete and absolute acts of decision. In the latter, politics is an uninterrupted narrative of proposals and projects that unifies the citizens and requires them to communicate in a given normative space and over time. This temporal perspective transforms representation into a political resource, a way to perfect democracy by emancipating it from the destabilizing force of presentism and the one-dimensional character of the will. Representation makes politics into a continuum by binding shortterm yes/no politics (referendum and election) to longer-term interelectoral cycles. Moreover, it provides for a further connection: that between

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the informal deliberation citizens activate within civil society through their direct political and multifarious forms of presence and the formal deliberation of representatives within state institutions. Revising the voluntaristic idea of sovereignty can have important practical consequences and justify or even inspire legislative reforms that would make the process of opinion formation and circulation more congruent with political equality. When judgment is introduced into our understanding of sovereignty, it is clear that a theory of democratic representation must attend to the issue of the circumstances of political judgment, an issue that pertains to the political rights of the citizen, not merely the civil rights of the individual. Citizens’ right to an equal share in determining the political will (one person/one vote) must go handin-hand with meaningful opportunities to form and manifest their ideas and give them public voice. Thus representation foregrounds the informal and yet very influential face of sovereignty, which reveals the shortcomings of the modern theory of sovereignty and how it functions as an obstacle to the legal refurbishment representative government needs if it is to avert the threat of indirect despotism, to use Condorcet’s apt expression. The 2003 decision by the United States Supreme Court to affirm the Campaign Finance Law passed by Congress is a positive although timid step in the right direction. In Justices Stevens and O’Connor’s words, “Congress is not required to ignore historical evidence regarding a particular practice or to view conduct in isolation from its context.” In other words, although the secret ballot prevents us from producing “concrete evidence” that “money buys influence,” the secret ballot (the sovereign’s authorization) is not a sufficient indicator of the status of democracy (or the only sovereign voice of the people). Indeed, plenty of historical and empirical evidence is available to lawmakers and citizens showing the connection between social power and political influence outside and beyond the formal event of elections. The Supreme Court’s decision can be read as an explicit invitation to political theorists to turn their attention to the multiple sites of popular sovereignty in a representative democracy, particularly those expressions that do not have an immediate translation into formal authorization and decisions. Moreover, it invites legislators and citizens to sharpen their institutional imagination in order to create new legal and institutional means to improve transparency and public scrutiny in the intricate network of interdependency between representatives and the represented; to regulate and limit the use of private wealth and social influence in electoral campaigns and the lawmaking process more generally; and lastly, and even more urgently, to protect the independence of public media 226

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from the power of ruling majorities and the pluralism of information from the exorbitant influence of private potentates. Finally, representation calls attention to the role of ideology and partisanship in politics, an aspect that contemporary political theory fails to appreciate with its deep-rooted rationalist approach to deliberation. The process of representation dispenses with the sovereign as an ontological collective entity and allows for sovereignty as an inherently plural unifying process. As we have seen, the political representative is not a substitute for the sovereign in passing laws, but needs to be constantly recreated and dynamically linked to society in order to acquire the legitimacy to pass laws. She is a representative of the nation because and insofar as she expresses a part of the nation when she makes claims before the whole nation and in the name of the principles it stands for as if they were consistent with the hypothetical sovereign will. Political partisanship always occurs within and in relation to the imagined general will or the interest of the community as a whole. It articulates and corroborates the “idea of reason” (symbolized by the constitution and the bill of rights) that constrains and contains all particular interests that exist in society. Thus representative democracy is the antithesis of both delegated democracy and en masse types of representative populistic or plebiscitarian democracy that identify the people with the person of the leader. In both cases the citizenry is conceived as an atomistic gathering with no intermediary political associations and ideological narratives. But specificity and generality, partisanship and impartiality meet in democratic representative politics because although they are identical as electors and in the formal weight of their vote, citizens do not vote as indistinct and neutral rights holders, nor can their vote be a direct rendition of their individual opinions. As a matter of fact, in a society in which citizens are free to express their ideas (and actually are required to express them about both lawmakers and sometimes laws), political representation becomes the special terrain in which individuals’ social and cultural specificity surfaces rather than congeals under the legal status of citizenship. This makes partial or partisan aggregations such as political groups or parties neither optional nor accidental insofar as political representation is a break with the logic of homogeneity and identification, although it is a unifying, not a fragmenting process. This is another reason why it is crucial to interpret sovereignty in terms of judgment and an imagined general will and why a democratic theory of representation should be able to explain the continuum of events that link parliamentary and extraparliamentary politics. It should also be able to explain the crises that 227

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this link is primed to face, and sustain the idea that the sovereign people retain a negative power that allows them to oversee, judge, influence, and censure their lawmakers. Citizens’ negative power may be depicted as an invigorating force and as an indicator that, like a barometer, signals the status of the “integrating force” linking the elected and the assembly with the society. This power is the informal sovereignty that exists outside state institutions while providing the esprit that makes them legitimate in peoples’ eyes. So it is appropriate to say that the understanding of representation as a democratic institution, rather than an expedient or a second best, coincides with the rehabilitation of an unavoidable ideological dimension of politics. This is because politics, in the context of representation, entails a complex process of unifying-and-disconnecting citizens by projecting them into a future-oriented perspective. Politics keeps the sovereign in perpetual motion, so to speak, while transforming its presence into an exquisite and complex manifestation of political influence.

228

Notes INTRODUCTION

1.

2.

3.

4. 5.

6.

7.

Aristotle, The Politics, 101–2. Since the “the poorer classes” outnumbered the rich, democracy was identified with rule of the poor; cf. Ober, Mass and Elite, chap. 5. Manin, The Principles of Representative Government, 3; although the “‘people’ is certainly a much larger entity today than in the eighteenth-century. . . , there has been no significant change in the institutions regulating the selection of representatives and the influence of the popular will on their decisions once in office” (236). The name of Sieyes is written in three ways: Sieyes, Si´ey`es, and Siey`es. I followed Pasquale Pasquino’s suggestion and chose the orthography with no accent (Pasquino, Sieyes, 197, n. 1 to the preface). From Solon’s Fragments, in Gagarin, Early Greek Political Thought, 26, and Pericles’ “Funeral Oration” in Thucydides, The Peloponnesian War, 145–47. Ober, Mass and Elite, 109. I am grateful to George Kateb for pressing me to stress the low democratic profile of our democracies in comparison with the most “genuine” democracy humanity has experienced. It is most costly and difficult above all for the poor and less affluent citizens, as we have learned from the several articles the New York Times has devoted to this issue on the occasion of the last presidential campaign; see among others the editorials titled “Barriers to Student Voting” (September 28, 2004) and “What Congress Should Do” (October 24, 2004). Dahl has proposed using the term “polyarchy” instead of democracy in his classic 1971 work Polyarchy. Although he tried to minimize the antipopular depiction of modern

229

NOTES TO PAGES 2–5

8. 9. 10.

11.

12.

13.

14.

15.

16. 17. 18.

19. 20.

230

government proposed by Mosca, Michels, and Schumpeter, Dahl retained their emphasis on the procedural and institutional arrangements versus participation. Cf. also Dahl, “Procedural Equality,” 97–133. Manin, The Principles of Representative Government, 237. Constant, “The Liberty of the Ancients,” 312. Sartori, Democratic Theory, 108. The “paradox” of modern democratic government is that “political representation excludes almost all of a nation from the institutions that democratically govern it” (Rehfeld, The Concept of Constituency, 5). Paine, The Rights of Man, 170; in the version published in Paine’s Collected Writings, the sentence runs as follows: “Athens, by representation, would have outrivaled her own democracy” (568). “In the United States in our day the principle of the sovereignty of the people has been adopted in practice in every way that imagination could suggest. . . . Sometimes the body of the people makes the laws, as at Athens; sometimes deputies, elected by universal suffrage, represent it and act in its name under its almost immediate supervision” (Tocqueville, Democracy in America, 60). See notes 17 and 18 below, and in addition Lefort (Democracy and Political Theory, 16–17) and Ankersmit, who has claimed that we must “distrust all efforts, in political theory and in practice, aiming to undo this doubling [of democracy and representation] by seducing us with deceitful visions of [the popular body as] unity and harmony” (Aesthetic Politics, 347). Barber, Strong Democracy, 145. “Elected ‘representatives’ do not represent the citizenry in any literal sense—as if the citizenry were doing the ruling ‘through them.’ This is nonsense. They rule and we do not. But it is because those of us in modern democratic societies can easily deprive them of power—depose them, if you will—at certain intervals that they have (at least theoretically) the incentive to rule in a way responsive to our interests” (Hampton, “Contract and Consent,” 391). “The theoretical moment of surrender, when democracy’s sympathizers accepted the inadequacy of the classical and early modern conception of democracy, was represented by Tom Paine, one of democracy’s most fervent advocates” (Wolin, Politics and Vision, 599). For a defense of the realist school, see Sartori, The Theory of Democracy Revisited, 102–15. Kateb, The Inner Ocean, 36–56. See, respectively, Plotke, “Representation Is Democracy,” 19, and Young, “Deferring Group Representation,” 352; Mansbridge, “Rethinking Representation,” 515. Hansen, Athenian Democracy, 267, 150; Aristotle, The Constitution of Athens, 41.3; Yunis, Taming Democracy, 43–46. Thus I find it puzzling that Ankersmit would defend the democratic character of representation by applying Machiavelli’s conflict between principe and popolo to the relationship between representatives and represented (Political

NOTES TO PAGES 5–8

21.

22.

23.

24.

25. 26.

27. 28.

29.

Representation, 190). In this way, representative democracy would be the arena of a vertical contention, actually a fracture, between two groups that are different not only because they do different things but also because they are in a hierarchical relation. As with Schumpeterians, election would be a means to appoint leaders, not to select representatives. “Democratic institutions render an intertemporal character to political conflicts. They offer a long time horizon to political actors; they allow them to think about the future rather than being concerned exclusively with present outcomes” (Przeworski, Democracy and the Market, 19). Hegel, Philosophy of Rights, 200–201 (§ 308). Hegel’s definition, however, referred to corporate representation, not individual (“democratic”) representation. As we shall see in chapter 2, the discontinuity thesis—the idea of a rupture between the ancients and the moderns over representation—has been largely developed by French theorists, from Montesquieu and Rousseau to Constant and Guizot. The American Federalists took a middle of the road position— Federalist 10 acknowledges that the ancients used representation, although not in the legislative branch and not as a substitution for people’s presence; whereas Paine denied that the ancients knew representation as a political institution. Yet regardless of the always legitimate ideological use political actors make of the past, from a historical perspective it is inappropriate to locate political representation in pre-Christian and pre-Medieval times. But, as I shall explain in chapter 2, on this issue at least Jean Bodin was the inspirer of Montesquieu and Rousseau. The “doctrine of ‘popular sovereignty’ incorporated in our concept of democracy is not Greek and is misunderstood whenever we derive it directly from demos”; its origin is the Latin populus; Sartori, Theory of Democracy Revisited, 22. Montesquieu, The Spirit of the Laws, bk. 2, chap. 2; Rousseau, On the Social Contract, bk.1, chap. 6. Exemplary is the case of Cornelius Castoriadis, who argued against representative politics in the name of the Athenian model of democracy but framed his argument in the language of modern sovereignty: “Democracy is the sovereignty of the demos, of the people, and to be sovereign is to be so twenty-four hours a day. And democracy excludes any delegation of powers; it is the direct power of men and women over all aspects of their social life and organization” (Castoriadis, Philosophy, Politics, Autonomy, 204). I am referring in particular to the works of Lani Guinier, Will Kymlicka, Anne Phillips, Melissa Williams, and Iris Marion Young. Hans Kelsen, Carl J. Friedrich, Hannah F. Pitkin, Jane J. Mansbridge, Norberto Bobbio, and Giovanni Sartori are just a few of the leading scholars who have made a substantial contribution to our understanding of representation in general, as well as its relation to democracy in particular. Hart, The Concept of Law, xiii.

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NOTES TO PAGES 9–15

30. References are of course to (though not exclusively) the work of J¨ urgen Habermas and Jon Elster, who have more or less directly studied the forms and mechanisms of deliberation in the representative setting, and Iris Young, who has more clearly related representation to democratic discourse. 31. Manin, The Principles of Representative Government, chap. 4; the view of representative government as “un r´egime aristocratique” which “a donc pour but une s´election” was eloquently conceptualized by Carr´e de Malberg (Contribution, 2:208). 32. Pitkin, The Concept of Representation, 2. 33. This is also how she interprets her book: “My own study of representation was . . . conceptual and theoretical. . . . [in this article] I want to talk about the relationship of representation to democracy, a topic never raised in my earlier study because at the time I took that relationship for granted as unproblematic” (Pitkin, “Representation and Democracy,” 336). 34. Pitkin, The Concept of Representation, 232. 35. Schumpeter, Capitalism, Socialism, and Democracy, 284–85. Medearis has recently written about the two antithetical views of democracy in Schumpeter’s work (Joseph Schumpeter’s Two Theories of Democracy) and claimed that although we conventionally associate Schumpeter’s name with a conservative as elitist conception of democracy, Schumpeter “had” not one but two views of democracy, one of which was radical or “transformational.” I think that this interpretation is somehow misleading because it suggests that Schumpeter also held a radical conception of democracy. Schumpeter did not have a radical view of democracy (the Rousseauian paradigm); rather, he assumed it as the norm of democracy in order to prove his theory of democracy as electoral competition by and selection of the political elite. He did more or less what Pareto and Michels did before him: he endorsed a superlative view of democracy just to stress that democracy is either pure utopia or an ideological fiction created by the ruling class. Schumpeter, Pareto, and Michels made the radical political culture of their times (and the Socialist party that backed it) play a conservative role. They adopted, as it were, a guerrilla strategy and fought their main adversaries with their adversaries’ weapons. This made them unquestionably different from the traditional conservatives of their time, and as much radical as their ideological antagonists. 36. Dunn presents a discomfiting analysis of the unavoidable limits of political accountability in contemporary representative democracies in “Situating Democratic Political Accountability,” 329–44. 37. Hence Dahl has recently argued that, “Even if some of the Framers leaned more toward the idea of an aristocratic republic than a democratic republic, they soon discovered that under the leadership of James Madison, among others, Americans would rapidly undertake to create a more democratic republic” (How Democratic Is the American Constitution? 5–6). 38. Gargarella has pointed out this problem in a convincing way and has related the crisis of political representation to the canonical definition and

232

NOTES TO PAGES 15–19

implementation of representative government (“Full Representation,” 260– 80). 39. Dahl hinted at this extension of the conception of democracy already in 1971, although the distinction between the ideal level (democracy) and the real level (polyarchy) upon which he grounded it implied conceiving participation and political competition as auxiliary to the “change in the composition of the political leadership, particularly among those who gain office by means of elections” (Polyarchy, 20–21). CHAPTER ONE

1.

Mansbridge, Beyond Adversary Democracy, 279–81. Mansbridge does not, however, deny that while direct democracy allows for more participation and control than indirect democracy, it is counterintuitive to think it protects all interests equally. “Small size does increase the average individual’s power within his or her own group, but it also reduces the group’s power vis-`a-vis the rest of the world. But direct analysis of outcomes suggests that the interests of the poor are better protected in larger units.” 2. Dunn, Western Political Theory, 28. On the notions of the moderns concerning the perfection of the ancients, see White, Individual and Conflict in Greek Ethics. 3. “Representation is incompatible with freedom because it delegates and thus alienates political will at the cost of genuine self-government and autonomy” (Barber, Strong Democracy, 145). 4. Kelsen, General Theory of Law and State, 289. 5. Mayo, An Introduction to Democratic Theory, 103. 6. Pennock, Introduction to Nomos XXV, 5. 7. Mansbridge, “Rethinking Representation,” 515. 8. Of course the argument of representation as expediency can, and actually did, serve the cause of the sovereignty of the parliament because the idea that the people could act for themselves may help “to sustain the authority of the few” since it suggests a resemblance between people directly assembled and people assembled symbolically through their representatives (Morgan, Inventing the People, 209–11). 9. Lumley, States of Emergency, 1–32. It is no coincidence that the two results of mobilization were the Statuto dei Lavoratori (Workers’ Charter), a set of norms instituting elected delegated bodies within each factory and regulating industrial and working relations, and the Decreti delegati (Delegation Act) instituting delegated bodies regularly elected by students, parents, and faculty in each public high school (and by students and faculty in each university). 10. Pizzorno, “Le due logiche dell’azione di classe,” 13. 11. Morgan, Inventing the People, 67–71. Commenting on the English revolution as electoral revolution, Philip Pettit has thus argued that “electoral democratization is not just an advance over dictatorial or colonial rule, but that

233

NOTES TO PAGES 19–22

12.

13. 14. 15.

16.

17.

18.

19.

20. 21.

22.

234

it is sufficient in itself to ensure that government is freedom-friendly towards electors” (“Republican Freedom and Contestatory Democratization,” 174). Sidney, Discourses Concerning Government, 563–64. “The democrats challenged the twin medieval assumptions, that God assigned to each man at birth his station in a sacred hierarchy, and that the realm was the geographic land and so its affairs were the concern only of the king and landed aristocracy” (Pitkin, “Representation and Democracy,” 338). Kishlansky, Parliamentary Selection, 12–21. Cochin, L’esprit du jacobinisme, 33–47. Hence Ackerman has argued that “all is lost if we are captured by this na¨ıve synecdoche” (or the rhetorical figure of speech in which the part replaces the whole). “If we mistake Congress for People Assembled, and give it supreme power, it will act in a way that belies its populist rhetoric”—that is, like an elective despot (We the People, 181). Morgan’s study of predemocratic England and America shows how elections were able to energize political life by involving people who were not included in the demos, such as women (Inventing the People, 189– 97). “It was the willingness of the elite to contend with each other that created the condition for the expansion of political participation” in the seventeenth century, “that made necessary both the party system” in the eighteenth century, and “the franchise reforms” in the nineteenth and twentieth centuries (Kishlansky, Parliamentary Selection, 21). For a case study analysis of the structural changes that occurred along with the democratization of the electoral system (extension of the right of suffrage and secret ballot), see Dahl, Who Governs? 1–50. “Schemes of representation . . . existed well before the eighteenth century, but the model of representative government for the state did not” (Dahl, Polyarchy, 169). I am indebted to the excellent essay by Fioravanti, “Dottrina dello Stato´ Persona,” 45–185; but see also Jaume, Hobbes et l’Etat, 68–133. Skinner, “Hobbes and the Purely Artificial Person of the State,” 185; but see also Runciman, Pluralism and the Personality of the State. The juridical theory was consistent with the consulting function of the delegates in pre-electoral parliament and became relevant in modern administrative functions (for instance, local communities and corporations); Clarke, Medieval Representation, 283–88. Although the modern model of authorization had Hobbes as its first theorist, it would be incorrect to classify Hobbes’ conception as representative government because once authorized, his sovereign may do as he pleases. Since Hobbes does not foresee elections after the first act of authorization, the sovereign’s obligation to act toward the well-being of the subjects is entirely at his discretion. One may object that interest—the interest of the ruler

NOTES TO PAGES 22–23

23.

24.

25.

26. 27. 28.

to preserve his power—may nonetheless play the role of a normative force of obligation and meet with the interest of society for peace and stability. Yet this is not a relationship of political representation, which requires a direct association to periodical and regular elections precisely because it does not rest on the discretional judgment of the ruler. Cf. Tuck, Hobbes, 70; Hampton, Hobbes and the Social Contract Tradition, 117–25; Jaume, ´ Hobbes et l’Etat, 114–15; Skinner, “Hobbes and the Purely Artificial Person of the State,” 185–86. Pitkin argued that this theory makes representation look like a “black box,” something it can neither understand nor define. “There can be no such thing as representing well or badly. . . . There is no such thing as the activity of representing or the duties of a representative” (The Concept of Representation, 39). John Locke is no exception because although the two contracts he theorized allowed the individual to retain his basic power of judgment, elections (the second contract) were essentially and solely a means of institution creation, not representation of the people. Downs, An Economic Theory of Democracy, 89. But see in addition Manin’s four reasons why allocating positions through elections has inherently discriminatory, antidemocratic effects and, moreover, hardly representative implications (The Principles of Representative Government, 139). The origin of the idea of representation as symbolic unity was the papal bull Unam Sanctam of Pope Boniface VIII (1302). The corpus mysticum Christi was the Church spiritually united by Christ through his vicar, the Pope, who led the visible Church of the believers (Kantorowicz, The King’s Two Bodies, 167–79). Concerning Schmitt’s secularization of the mystical unity into the unity of the State under the person of the Leader (f¨uhrer) see his Political Romanticism, where he discusses the Romantics’ assumption of the Medieval standpoint that “it is simply not possible to distinguish between the king, the state, or the beloved” (126), and his Verfassungslehre, where he discusses representation as the “highest, most developed and most intense” form of people unification against the liberal view that regarded representation as a means for solving conflicts through compromise (Kennedy, Constitutional Failure, 64–81). For a comprehensive synthesis of these late revisions of the juridical theory of representation, see Leibholz, Das Wesen der Repr¨asentation, 54–89. ´ De La Bigne de Villeneuve, Trait´e g´en´erale de l’Etat, 2:32. Carr´e de Malberg, Contribution, 2:231. In this case, representation loses all political character and is identified with the act of instituting the function of an organ; the separation between office and the actor or the formation of the state in the Weberian sense qualifies this conception as a theory of officialdom. In Carr´e de Malberg’s opinion, the best illustration of the organic doctrine of the state prefigured by the institutional theory of representation has been proposed by Emanuele Orlando, “Studi giuridici sul governo parlamentare,” 521–86.

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NOTES TO PAGES 24–28

29. Friedrich, Constitutional Government and Democracy, 273; see also, B¨ ockenf¨ orde, State, Society and Liberty, chaps. 6–7. 30. Pitkin, The Concept of Representation, 209; Friedrich, Man and His Government, chap.17. 31. Disagreement among scholars and differences among liberal and democratic theorists of representation derive from the unavoidable link between society and the state. For instance, Sartori defines the kind of representation I am describing as “sociological” (as opposed to political) because according to him any concern with degrees of representation selects the similarity with social identities as a criterion. In Sieyes’ tradition, Sartori uses the adjective “political” to define only the institutional aspect of representation that pertains to the formation of a “responsible government.” Representative democracy is another name for electoral democracy because election is what makes representation political as statal. Sartori, Elementi di teoria politica, 285–86. 32. For a view of contemporary democracy as articulation of three moments— constitutional, ordinary or electoral, and spontaneous or revitalizing—see Kalyvas, “Carl Schmitt and the Three Moments of Democracy.” For an interesting attempt to read political representation as political mediation that highlights various kinds of participation and influence, see Cohen, “The Self-Institution of Society,” 26–35. 33. Powell, Elections as Instruments of Democracy, 4; Przeworski, “Minimalist Conception of Democracy,” 45. 34. Habermas, Between Facts and Norms, 485. 35. Pitkin, The Concept of Representation, 54. Elster has defined Burke’s speech to the electors of Bristol as “the most famous statement of the case for deliberative democracy,” although Burke was proposing “democracy” for the few, or designing a model of deliberative aristocracy, rather than deliberative democracy (Elster, Introduction to Deliberative Democracy, 3). 36. Schumpeter, Capitalism, Socialism, and Democracy, 295. As Italian prime minister Silvio Berlusconi used to tell his fellow citizens when they demonstrated their opposition during the intraelectoral time and autonomously from their elected representatives (and sometimes against them): “since you have chosen me in a free electoral competition, you must now be quiet, and let me do my job.” 37. I borrow this expression by Engels from Przeworski, “Minimalist Conception of Democracy,” 49. 38. Habermas, Between Facts and Norms, 299; Cohen has proposed an even more organic and unitary view of deliberation in his many essays, but particularly “Deliberation and Democratic Legitimacy,” 67–91. 39. Condorcet, “Id´ees sur le despotisme” (1789), Oeuvres (hereafter cited as O), 9:151–52 (italics added); a similar idea was adumbrated by Locke, who described as “usurpation” the situations in which elected legislators “betrayed their mandate” and the sovereign changed “arbitrarily” the electoral praxis without calling for new elections so as to remake the parliament in

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NOTES TO PAGES 28–31

40. 41.

42.

43. 44. 45.

46. 47. 48.

agreement with people’s consent (The Second Treatise of Government §§ 222, 216). The notion that democracy is characterized by “the continued responsiveness of the government to the preferences of its citizens” is widespread among contemporary theorists of democracy (Dahl, Polyarchy, 1, italics added); yet in contemporary political science, governability (stability of the executive) trumps anticipated elections so that “continued responsiveness” means essentially regular elections. Pitkin, Wittgenstein and Justice, 236 (italics added). As I will show in the last chapter, Condorcet was the first author who envisaged institutional mechanisms to readjust the break of responsiveness such as recall (under certain circumstances and conditions), anticipated elections, and referenda; these procedures were meant to institutionalize the citizens’ negative power (the “right to censure”) or the right to intervene whenever there was a crisis of representativity. For a recent proposal to reevaluate old forms of controlling power, such as the Roman tribunate, see McCormick’s unpublished paper, “Contain the Wealthy and Patrol the Magistrates.” I also learned a great deal from Le Foulon’s paper, “Counterbalancing Forces in the Roman Republic.” For a recent proposal to resume the tribunate model, see Thompson, “Democracy in Time,” 256–57. For a recent reassessment of “modern agency theory” of representation in terms of a contract, see Ferejohn, “Accountability and Authority,” 131–53. For criticism of this approach, see Thompson, Political Ethics, 101. Cochin, L’esprit du jacobinisme, 80–81. Taylor, “The Dynamic of Democratic Exclusion,” 153. The identification of democracy with “the force of numbers” has attracted detractors and skeptics of democracy. After having derided the idea that government can be resolved as a numerical issue, Pareto wrote: “We need not linger on the fiction of ‘popular representation’—poppycock grinds no flour. Let us go on and see what substance underlines the various forms of power in the governing classes. . . . The differences lie principally . . . in the relative proportions of force and consent,” which means that number is indeed a means to use force through consent and democracy is the most effective way to achieve the goal a tyrant longs for but cannot get since he does not have the power of numbers on his side (Pareto, The Mind and Society, 4: § 2244). This point is the subject of a vast literature. One example is Mansbridge’s “Should Blacks Represent Blacks and Women Represent Women?” 634. “Si l’´election ‘fait’ la repr´esentation, les e´ lections ne ‘font’ pas pour autant les repr´esentants” (Gueniffey, Le nombre et la raison, 146). Rosanvallon, La d´emocratie inachev´ee, 62, 49; for an excellent analysis of two ways of interpreting voting—either as a transcription of interests or of political opinions—see Waldron, “Rights and Majorities,” 49–51. For a discussion of the fragmentation of movements and parties as an effect of direct democracy (e.g., referenda), see Ladner and Br¨andle, “Does Direct

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NOTES TO PAGES 31–34

49. 50.

51. 52. 53. 54. 55.

56. 57.

58.

59.

60.

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Democracy Matter for Political Parties?” 295–96; Papadopoulos, “Analysis of Functions and Dysfunctions,” 424–28. I will return to the meaning of ideology in chapter 3 and to the problems of hastiness in deliberation in chapter 6. Gramsci, Quaderni del carcere, 1625; see also Dewey, “The Ethics of Democracy,” 232–33, and Dworkin, who writes that participation requires specific structures and institutions of which the vote is one component: “The symbolic goals [of egalitarian politics] argue for equal votes within the district, the agency goals for liberty and leverage, and the choice-sensitive accuracy goal for a large degree of equality of impact” (Dworkin, Sovereign Virtue, 207). On the “punctuated” short-term logic implied in direct votes on issues, see Papadopoulos, “Analysis of Functions and Dysfunctions,” 438–39. I will return to this crucial issue in the last chapter, when I discuss Condorcet’s idea of mediated versus immediate democracy. Lefort, Democracy and Political Theory, 225. Sartori, The Theory of Democracy Revisited, 430. “The way Macbeth is ‘made present’ on the stage differs from the way an ambassador represents a state, or the way one ‘makes representations about’ something, or what characterizes representational art or a representative sample” (Pitkin, “Representation and Democracy,” 336). The problem is that in the English and French languages there is one single word to denote such different performances (representation and repr´esentation). In German and Italian, representation in art or theatre (Darstellung or Vorstellung; rappresentazione) has no conceptual connection with representation in court or in government (Vertretung; rappresentanza). Gramsci, Quaderni del carcere, 1625. Mansbridge calls this “dynamic” view of representation “anticipatory” because citizens are not seen as static agents of accountability and passive spectators of representatives’ behavior; they and their representatives are actually participants in the “continuing communication and potentially changing” opinions through the entire electoral mandate (“Rethinking Representation,” 518). Plato, Republic, 163; Walzer, Spheres of Justice, 305. For a comprehensive analysis of the Athenian procedures and institution, see Hansen, Athenian Democracy. In pre-electoral England, for instance, when parliamentary posts were distributed among the nobles as recognition of honor, lottery was used to designate the candidates, not elections, because it was a neutral system that did not allow for judgment or discrimination among peers. Kishlansky, Parliamentary Selection, 36. This is why the minimalist conception of democracy is lacking. While intellectually elegant, the Hobbesian (peace-seeking) idea of democracy cannot be truly minimalist. Its ambition is to be only “descriptive” in order to be

NOTES TO PAGES 34–36

61.

62.

63. 64. 65.

66. 67.

68. 69.

70.

as universalizable as possible. The problem is that, while it claims it keeps nonminimalist factors such as deliberation and participation out of the definition and narrows democracy to a set of rules regulating the expression and temporary resolution of “conflicting political forces,” “minimalism” cannot hold true without surreptitiously assuming citizens’ participation and deliberation, without which both the existence of “conflicting political forces” and the performance of their conflict would be inconceivable. Hobbes, The Elements of Law, 120. I discussed this issue in “Representation as Advocacy,” 758–86. Hobbes’ opinion meets Pericles’: “And we [Athenians] at least decide policy correctly even if we do not formulate it, in the belief that it is not speeches that hinder action, but rather not to be instructed by speech before going forth to our task” (Thucydides, The Peloponnesian War). The idea that conflict works as an integrative force in intimate, social, and political groups belongs to an extremely rich and honorable tradition crisscrossing modern political and social sciences. I mention only three representative authors: Simmel, Conflict; Hirschman, “Social Conflicts,” 203–18; and Olson, The Logic of Collective Action, 9 n. 11. Kishlansky, Parliamentary Selection, 10–11. I discuss the comparison between Athens and Sparta in Mill on Democracy, chap. 1. I shall discuss the character of political judgment in chapter 3. Kelsen thought that from an epistemological point of view, democracy is the political realm of relativism (“Absolutism and Relativism in Philosophy and Politics,” 906–14). Przeworski, “Minimalist Conception of Democracy,” 49. This led theorists like Tocqueville and Dewey to think that democracy is (and needs to be) more than a system of government; see also Dahl, Who Governs? 318–19. I shall discuss this issue at length in chapter 3. Elgin, Considered Judgment, 63. “The acceptance of legal limitations rests more on habit than on instrumental rationality” (Yack, The Problems of a Political Animal, 184). Once again, John Dewey is an interesting source because of the link he established between knowledge and judgment, instrumentality and values, thus defeating the dualism between strategic reasoning and deliberative reasoning (The Public and Its Problems, 175–84). On the reason why this dualism is questionable in democratic politics, see also Chambers, Reasonable Democracy, 17–42. Pitkin, The Concept of Representation, 212. Writers who endorse the argument of the ethical foundation of political practices and procedures range from liberals like J. S. Mill and Tocqueville to state-centered theorists like Hegel, democratic societarians like Dewey, and “culturalists” like Almond and Verba and Putnam. The debate over whether “values” can better explain social phenomena than economic interests or social structures has framed the status of political science and theory since World War II (an excellent illustration is Barry, Sociologists, Economists, and Democracy). Today’s trajectory seems to proceed toward a reevaluation of “values,” “culture,” and beliefs as

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NOTES TO PAGES 36–37

71.

72.

73.

74. 75.

76.

77.

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motivational forces in politics. This makes the issues of representativity and advocacy extremely relevant and timely. Ankersmit, Aesthetic Politics, 47. Yet Ankersmit ends up by saying that what makes representation superior to direct democracy is the fact that since “there is no objectively given proposal for political action on the part of the people represented” it would be wrong to expect that people can make proposals; “we need representation in order to be able to define such proposal at all.” My view of representation as a process of circularity and circuitry (between institutions and society) aims not to be a neo-elitism. On the relevance of the belief system in the formation of electors’ preferences and the party as a pole of identification rather than simply an electoral machine, see Przeworski, “Deliberation and Ideological Domination,” 143– 44. Rawls, Political Liberalism, 165. As Ferrara puts it: “The motor of this development is the fact that once a constitutional consensus is reached, the need to form majorities around specific issues of political concern motivates groups clustered around a given comprehensive conception ‘to move out of the narrow circle of their own’” (Justice and Judgment, 20). Pelczynski, Introduction to Hegel, Political Writings, 91. Pitkin, The Concept of Representation, 217. On representative politics as “constituting” “the parts,” see Schwartz, The Blue Guitar, chap. 8. Friedrich suggested that emphasizing representation’s link to society while separating the informal political activities of the citizens from electoral authorization implies “influence” rather than “participation”: “We speak advisedly of influence rather than participation or control, since the large number of citizens is not very likely to participate in or effectively to control government action” though political representation (Constitutional Government and Democracy, 278). This conception was fully envisioned by Burke and Hegel, who used almost the same words to describe the mediating function of representative institutions, although the latter saw better than the former the role of political parties in constitutional government and stressed the crucial distinction between “factions” and “parties”; see, respectively, Burke, “Speech on Economical Reform,” 160, and Hegel, “The English Reform Bill,” 295–330. Cf. also Suter, “Burke, Hegel, and the French Revolution,” 52–72, and the excellent work of Kerv´egan, Hegel, Carl Schmitt, chap. 5. Two traditions form the root of the conflation of democracy with corporatist representation: the theory of strong democracy, which claims that mainstream democratic theory was fabricated by thinkers who concentrated exclusively on the politics of the state rather than direct participation, which is essentially local (Pateman, Participation and Democratic Theory, 110); and the theory of guild socialism and pluralist democracy, which in the attempt to demystify the state, has radicalized Marx’s view that politics is directly instrumental to social interests (Hirst, Representative Democracy and Its Limits,

NOTES TO PAGES 37–38

78.

79.

80.

81.

82.

83.

chap. 2). For a critical overview of these two traditions, see Barnard, Democratic Legitimacy. The logic of corporatist representation crosses the theory of group representation, although the goal in this case is not participation but recognition and multicultural justice; see, for instance, Kymlicka, Multicultural Citizenship, 131–51. Young, Justice and the Politics of Difference, 233. Ever since James Madison, the idea that partisan groups are constitutive of representative democracy has become a topos in political science and theory. See, most recently, Schmitter and Trechsel, Green Paper on the Future of Democracy in Europe, 28 (I am grateful to Philippe Schmitter for allowing me to consult the manuscript). Hegel, Philosophy of Right, § 303; Weber, Political Writings, 57–59. Kerv´egan, Hegel, Carl Schmitt, 298. Hence Franco has written that Hegel displays “a similar ambivalence” as Burke on representation, “sometimes arguing that a representative’s duty is to uphold . . . national interest, at other times arguing that it is to maintain the true interests of his constituents as opposed to their ephemeral opinions” (Franco, Hegel’s Philosophy of Freedom, 327). Tocqueville, Democracy in America, 174–75. Anticipating Max Weber’s distinction between ideological party and electoral machinery party, Tocqueville distinguished the “great political parties” from the “small parties” and suggested that whereas the latter aggregate interests “without political faith,” the former unify citizens through principles and interpretations on the general destiny of the country. Tocqueville did not argue that private interests operate only in “small parties,” yet he saw that in “great political parties” interests “conceal beneath the veil of public interest.” Similar to Tocqueville’s distinction and an anticipation of Weber’s was Hegel’s distinction between hommes d’´etat and hommes a` principes, which prefigured two different forms of party (Hegel, “The English Reform Bill,” 325; Weber, Political Writings, 152–54). Friedrich, Man and His Government, 509–23. Political party organizations strengthen people’s accountability power through time because they “encourage current representatives to give more attention to future ‘constituents’” (Thompson, “Democracy in Time,” 258). For a historical and analytical overview of the party (as opposed to factions and en masse democracy) in modern politics see Epstein, Political Parties, chaps. 1–3. Undoubtedly, Habermas is the leading author of the cognitivist rendering of deliberation and democratic liberty. In a very perspicacious review of some of his works, Quentin Skinner years ago showed how Habermas parts company with classical theories of social existence as a source of individual unfreedom (from Weber through Foucault) by assigning responsibility for our loss of liberty “not primarily” to “external coercive forces” but rather to “ourselves.” “As he [Habermas] puts it in the concluding section of Theory and Practice, it is only because the prevailing ‘relationships of power’ in society ‘have not been seen through’ that they manage to retain any

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84.

85. 86.

87.

88.

89.

242

ascendancy over us at all.” Since the “form of consciousness” or an “ideologically distorted” legitimacy is at the origin of the lack of freedom and the system of coercion, liberation will come preferably from a “critical” and “reflective type” of social science (Skinner, “Habermas’s Reformation”). Much of the difficulties recently attributed to the representative system in “taking into account the viewpoints” of the “infinite groups” with “no uniform positions” (Gargarella, “Full Representation,” 271) can be seen as difficulties related to the decline of party’s associational presence within society. Manin, The Principles of Representative Government, 220; Manin thinks this is “a change” rather than a “departure” or a new form of elite selection. This might also hold true for presidential elections, in which “the personal” factor is more prominently at stake: “We do not merely choose a president or decide on a law [when we cast our ballot]. We choose a total world in which everything is settled” (Hardin, “Public Choice versus Democracy,” 161). Bobbio, “Il compito dei partiti politici” 119–24; Palonen, “Parliamentarism,” 14. Thus it is not convincing that post-party democracy or “audience democracy” is a more liberating stage. “The rise of popular, nonpartisan media has an important consequence: whatever their partisan preferences, individuals receive the same information on a given subject as everyone else. Individuals, of course, still form divergent opinions on political subjects, but the perception of the subject itself tends to be independent of individual partisan leanings” (Manin, The Principles of Representative Government, 228–29). Yet “audience democracy” shows quite a different image: that of a restructuring and reshaping of the party form according to goals and criteria that are less, not more democratic. In Italy, the country that made video-populism a powerful challenge against the traditional party system, Silvio Berlusconi was able to win a stable majority only when he created his own party, endorsed a strong ideological identity, and gave his voters the certainty they belonged to a party, not simply a television commercial. On the surface, “audience democracy” seems to epitomize a system of representation that is fluid, open, and characterized by indeterminacy and run by individual candidates rather than a homologated party’s members. A closer analysis, however, reveals this system to be no less hierarchical, rigid, and homologated than its ancestor, with the remarkable (and pejorative) difference that now the unifier is the person of the leader directly and the subliminal power of media indirectly. For a poignant and strongly critical analysis of “audience democracy,” see Sartori, Homo Videns. Hence Kateb has remarked that whereas the individual is the unit of legal obligation, the political group(s) are the units that create the consent to the law (Hannah Arendt, 130–42). This makes accountability (of representatives to electors) a structurally ethical and political claim. Theorists of democratic minimalism use this argument to conclude that the only truly democratic institution is election

NOTES TO PAGES 39–41

90.

91.

92. 93. 94. 95.

96.

97.

98.

because votes are the most reliable public data at our disposal and voting is the only formal way citizens have to punish and threaten their rulers (Przeworski, “Minimalist Conception of Democracy,” 34–35). Contemporary societies are democratic “not simply because they have free elections and the choice of more than one political party, but because they permit effective political competition and debate” (Hirst, Representative Democracy and Its Limits, 33–34). On the other hand, periodic elections are a way to validate political personnel, not check on government, because since “re-election normally requires the satisfaction of the demands of particular groups, the conventional democratic system provides no mechanism which effectively protects the public interest from the effects of group pressure” (Barry, Classical Liberalism, 25). Dewey, “The Ethics of Democracy,” 233. This casts some doubt on consensual renderings of deliberation which assume that “bracketing political and economic power is sufficient to make speakers equal” (Young, “Communication and the Other,” 122). Przeworski, “Minimalist Conception of Democracy,” 47. I discussed this issue in Mill on Democracy, chap. 3. Aristotle, The Politics, 231. Mill, Considerations on Representative Government, 403. A “fair representation” thus requires proportional representation (Rogowski, “Representation in Political Theory,” 411). But see also Guinier, who emphasizes the difference between democracy and the majority ruling in her unpopular claim for proportional representation (Tyranny of the Majority, particularly chaps. 3–4). It might seem that fair representation is somehow opposite to or in any case different from liberal representation, which is in fact identified with the difference-blind proceduralist principle of “one head/one vote” and interest-group pluralism (Williams, Voice, Trust, and Memory, 6). I think this argument is highly imprecise because it mixes political minority and social minority and reproduces the mistake it intends to amend when it fuses the electoral right and the right to be represented. This is by way of response to Melissa Williams, who argues that not all social groups require fair representation (this is thus neither a chapter in the theory of group rights nor a chapter in the theory of equality) but just those groups that have been historically marginalized. The aim of fair representation is to repair an unjust situation, and is defined with respect to “the identity of the people who sit in legislatures.” She argues that “when historically marginalized groups are chronically underrepresented in legislative bodies, citizens who are members of those groups are not fairly represented” (Voice, Trust and Memory, 3). Nonproportional counting, or majority-vote system counting, is a violation of quantitative fairness, whereas the principle of just representation “secures a representation, in proportion to number, of every division of the electorate

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body: not two great parties alone” (Mill, Considerations on Representative Government, 455). 99. Hence Plotke has written that in a representative government not to be represented (not to be given the chance to send our voice to the legislature) is a form of exclusion (“Representation Is Democracy,” 19). 100. Mill, Considerations on Representative Government, 448–50 (emphasis added). “Political equality requires not only weighing votes equally in the drawing of districts but some assurance that the process is representative of the entire country” (Fishkin, The Voice of the People, 143). For a critique of this view, see Beitz, Political Equality, 135. 101. For an excellent account of political equality, see Dworkin, Sovereign Virtue, 194–98. 102. Ober, The Athenian Revolution, in particular chap. 4; I endorse Ober’s suggestion to interpret democracy as a movement rather than just a constitutional arrangement. Beitz distinguishes three kinds of equality: equal political power (one person/one vote), equal opportunity of electoral success, and equal opportunity of legislative success (Beitz, Political Equality, 8). It could be said that the first only requires to be arithmetical because it pertains to the basic right of the citizen to vote. 103. Hence Knight and Johnson have claimed that democracy “requires some version of equality of opportunity” (“What Sort of Equality . . . ?” 280). 104. Guizot, History, 7–10. 105. There are different ways of dealing with these obstacles; some constitutions make the government directly responsible for enacting a welfare system; others propose a more indirect form of intervention that aims to contain inequality rather than promote equality. 106. Bybee, Mistaken Identity, 12. 107. Pitkin was extremely perceptive in explaining the difference between the formalistic and the political theories of representation in relation to equality: “The more a theorist sees the representative as a member of a superior elite of wisdom and reason, as Burke did, the less it makes sense for him to require the representative to consult the opinions or even the wishes of those for whom he acts. . . . Conversely, to the extent that a theorist sees representative and constituents as relatively equal in capacity and wisdom and information, he is likely to require that the views of the constituents be taken into account” (The Concept of Representation, 211). 108. See Dahl’s analysis of “the patricians” of early New England republicanism: “. . . the elite of New Haven, like the Standing Order in Connecticut, completely dominated the political system. They were of one common stock and one religion, cohesive in their uniformly conservative outlook on all matters, substantially unchallenged in their authority” (Who Governs? 15). 109. This absence speaks to a deep linkage between representation and sovereignty. The fact that in the United States the constituents did not feel the need to forbid imperative mandate by law means that representation was

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not the object of the (domestic) battle over the control of sovereignty; representation was the instrument people employed to affirm themselves as an independent sovereign against a colonial potentate. 110. Burke himself acknowledged that “to deliver an opinion is the right of all men; that of constituents is a weighty and respectable opinion, which a representative ought always to rejoice to hear, and which he ought always most seriously to consider” (“Speech at Mr. Burke’s Arrival in Bristol,” 156). 111. Pitkin, The Concept of Representation, 107–11. On the inadequacy of the dualism trustee/delegate, see also Thompson, Political Ethics, 99–102. 112. Cf. for instance Joshua Cohen, who describes deliberation in terms of correcting “distorted” interpretations of the public good and thus “reducing” diversity of interpretation (“Democracy and Liberty,” 199). For a critical assessment of a rationalistic notion of public reason which is implied in Rawls’ Rousseauian legacy, see the excellent contribution of Manin, “On Legitimacy and Political Deliberation,” 338–68. 113. “But the notion that shared experience guarantees shared beliefs or goals has neither theoretical nor empirical plausibility” (Phillips, The Politics of Presence, 133). 114. Thus Phillips correctly argues that in a proportional system, the representative has more autonomy than in a majoritarian one; for advocates to be deliberators, they “have to be freed from stricter forms of political accountability” (The Politics of Presence, 56, 156). 115. A “regime of lawmaking need not, in order to be right, result in perfect just laws; rather, it need only use procedures capable of producing laws that are valid” (Michelman, “How Can the People Ever Make the Laws?” 148). 116. See, respectively, Perelman, Justice, Law, and Argument, 59, 66; and Mill, Considerations on Representative Government, 510. 117. For a classical conceptualization of deliberative rhetoric, see Aristotle, The Art of Rhetoric, 33–39, and Cicero, On Oratory and Orators, 1:173–74. On the shaping of the deliberative style and timing per effect of the parliamentary setting, see Palonen, “Parliamentarism,” 18–22. 118. As Dworkin puts it, the very moment we claim an equal political say for all citizens, we are also forced to admit that people are different in how they perform politically. Some have more ability or more passion than others and, thus, more chance to pursue their preferences (Dworkin, “What Is Equality?” 5). The link between election and choice is effectively discussed by Manin (The Principles of Representative Government, 132–42, 161–67), although it seems to me he over-emphasizes the role of personal qualities and obfuscates the fact that electors look also for commonalities between themselves and the candidates if they are to choose advocates rather than merely appoint political officers. For this reason, electoral selection is never simply a selection because since representatives are lawmakers the evaluation of the qualities of a candidate are always judged in relation to the ideas that she

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has or does not have in common with the voters. See also Pitkin, The Concept of Representation, 90; and Dovi, “Preferable Descriptive Representatives,” 736–37. 119. I discussed this issue at length in “Representation as Advocacy,” where I rely upon Cicero’s phenomenology of the advocate’s relationship to her client’s cause. 120. This view diverges from Ankersmit’s, according to which representation is an aesthetic gap (not mimetic identity) or a distance between representatives and represented; but if this were the case the latter’s chance of exercising political control or influence over the former would be vain (Aesthetic Politics, 46–47). For an insightful discussion of the relationship between these two poles of representation and its challenge to the institutions of democracy, see Mortati, Dottrina generale, 160–70, and La costituzione, 115–200. 121. I shall return to this issue in chapter 3. Pitkin’s The Concept of Representation provides an exhaustive examination of the various forms of correspondence between representative and represented (chap. 4). For an analytical articulation of representation in terms of whether the representative should share the characteristics of the class of persons she represents or simply symbolizes those characteristics, see Birch, Representation, 15–18. Transcending factions, in Federalist 10’s sense, is not thus the same as transcending people’s opinions (hence the very possibility of accountability). See Ackerman, We the People, 186–90. 122. See Young’s very effective discussion of what she calls “social perspective” (Inclusion and Democracy, 136–41). 123. Critical examination of theories of group representations is not among the objectives of this book. The idea of political representation I am advocating, however, counters the symbiotic conception that the revival of group representation seems to imply. Melissa Williams and Anne Phillips have recently argued that it would be absurd to claim that a female representative would be a better representative of women’s claims or interests simply because she is a woman (Williams, Voice, Trust, and Memory, 6; Phillips, Politics of Presence, 157). Yet while they disclose the tension existing between “being” and “doing” (and thus the limits of a corporate representation), they focus essentially on the implausibility of the consequences (belonging to a group is not a good reason to think like each member composing the group) rather than appeal to principles of political (as democratic) representation. An interesting countermove has been proposed by Iris Young, who, relying upon Derrida’s concept of diff´erence, invites us to think of representation as deferred presence. Representation is the process by which traces of the past survive and are recognizable and recognized in the present (this is what allows for accountability to occur and citizens to recognize themselves in a representative); wherein the idealizing character of judgment in representation emerges to counter any form of symbiotic identification (Young, Inclusion and Democracy, 127–29). I think that working on the categories of

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representativity (reflected or mediated adhesion) and advocacy will help us to understand the uniqueness of political representation as a politics of presence through ideas. 124. A distinctive element that some individual possesses in greater proportion than others is what allows that individual to be seen, recognized, and chosen (this consideration justifies drawing a parallel between representation and aristocracy). “Yet the elements of singularity must not be too great, for people will not accept as leaders men whose characteristics are alien to the masses. It follows, therefore, that notwithstanding the influence of the individual singular ideas, the personnel of representative bodies and the product of their legislative activities mirrors with fair accuracy the present state of public consciousness, and so it remains true, notwithstanding the influence of the personal singularities, that the result of legislative work is, on the whole, determined ‘by popular feeling’” (Rice, Quantitative Methods in Politics, 193–94). 125. Ankersmit, Aesthetic Politics, 46. 126. For an excellent study of representative temporality in parliamentary politics, see Palonen, “Parliamentarism”; and Mansbridge, “Rethinking Representation.” 127. Constant, “Principles of Politics,” 209. 128. The “free-will” and ex-nihilo-power character of sovereignty still influences the contemporary theories of law and order inside and outside state borders; see for instance, Morgenthau, Politics among Nations. 129. Arendt, On Revolution, particularly the last chapter, in which she attempts to draw a parallel between the theorists of representative government and the Jacobins as two identically opposite forms of appropriation of politics by political professionals. 130. The main supporters of a proceduralist definition of democracy came from the tradition of juridical and logical positivism. Its theoretical foundation is the distinction between “right as a fact” and “right as a value”; its goal is the study of normative systems as nonevaluative phenomena. From David Hume and Jeremy Bentham to H. L. A. Hart and Hans Kelsen, this tradition has tried to oppose the ethical doctrine of the state as an attempt to counter the individualist and conventionalist theory of representative government. Since the 1930s, this approach has acquired the obvious merit of providing for the most radical alternative to the triumphant experimentations of ideological and organic models of the ethical state—Nazi-Fascism and Communism. In those years, procedural definitions of democracy acquired momentum, particularly on the Continent. The dualism between facticity and normativity was their strategy to counter ideology in politics in the name of the fallacy of substitution of the “ought” for the “is.” Accordingly, an ideological approach to democracy meant deriving prescriptive or desiderative conclusions from assertive or descriptive theses, and ideology meant secularized theology.

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131. Michels, Political Parties, 75, and Schumpeter, Capitalism, Socialism, and Democracy, 242, 260, 271. 132. Arendt, On Revolution, 276. Arendt understood the link between representative government as elite selection and a centralized and unitary state sovereignty: on this ground she rejected both the discourse of popular sovereignty and that of representation and substituted them with the battery of republican-liberal strategies of power’s creation-and-limitation, from basic rights, federalism, separation of powers, and the rule of law to forms of direct participation and popular conventions (Cohen, “Rights, Citizenship”). 133. Young, “Deferring Group Representation,” 359. Young’s theoretical move coincides with Hardt and Negri’s argument that post-modernity is the full realization of immanence, although the latter identify (and reject) sovereignty and representation as two complementary projects of modernity; Hardt and Negri, Empire, 84. 134. Balibar gives a further reason why we need to refer to popular sovereignty: “unless” we are “to accept the integral technicization and bureaucratization of the ‘law,’” the ideas of the constitution and political autonomy are essential to democracy (We, the People of Europe? 199). 135. Downs’ consumerist model of party democracy was consistent with this view since he assumed the party as a one-dimensional individual, single-minded and dedicated to only one object (winning a majority); Downs, An Economic Theory of Democracy, 28. 136. “The ideals of democracy suggest that citizens ought to play a very substantial role in the governance of their society. The trouble is that the ideals appear quite unrealistic in a modern democratic state”; Christiano, The Rule of the Many, 5. For a comprehensive discussion of the tension between ideas and facts in contemporary democratic theory, see Habermas, Between Facts and Norms, chap. 7. 137. Constant, “The Liberty of the Ancients,” 312. 138. Kelsen identified any political regime with the method of norms production, and he defined democracy as an institutional and procedural order organized by the ground norm of “equality of all citizens” (General Theory of Law and State, 297–99). 139. Kelsen, General Theory of Law and State, 292. 140. Kelsen, General Theory of Law and State, 8–9. For a distinction between several meanings and uses of “ideology,” see also his Introduction to the Problems of Legal Theory, 35–36. 141. Kelsen, General Theory of Law and State, 291. 142. Habermas has argued that the idea of politics as discussion and compromise should not be grounded on a contractarian view of the relationship between the citizens and the state, since this view allows for only two outcomes: the reduction of politics to a mere instrumental bargaining; and the complaint by conservative thinkers (such as Schmitt) that discussion as a means of

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reaching political decisions is responsible for fragmenting the political unity of the nation; Between Facts and Norms, 463–90. 143. To paraphrase Rawls, in the constitutional assembly, delegates of “free and equal citizens” are “not allowed to know the social position of those they represent, or the particular comprehensive doctrine of the person each represents.” This means that there is no representation in constitution-making because representation requires knowledge and evaluative judgment of interests and opinions of the represented (Political Liberalism, 24). 144. On the dimension of publicity as constitutive of representation and the main reason it is outside the domain of the contract, see Leibholz, Das Wesen der Repr¨asentation, 33. 145. Pitkin, The Concept of Representation, 110. 146. “No American will ever be able to seriously say again, ‘My vote doesn’t count,’” President Bill Clinton said on November 8, 2000. This statement reveals a serious democratic deficit. The value of political equality in the electoral process does not need to refer to a thick civic culture; it is the bottom line of democracy, the basic condition whose source is the formal assumption that democracy is a system of government wherein each and every citizen, rather than the mass of citizens, is sovereign. Rousseau’s principle of political legitimacy is the best formulation of this sine qua non minimalism, as we shall see. Violation of electoral equality and the individuality of the vote violate democracy pure and simple, because these conditions are prior to any adjudication of equal political respect, and are in fact the point of departure for the recognition of equal respect. “The principle of equal respect” that all should have as electors, Thompson has perceptively written, “requires less than do the ideals of equality that theorists typically propose to define electoral justice” (Thompson, Just Elections, 20). On the factors that matter in voting participation, see Norris, “Do Institutions Matter?” 133– 48. CHAPTER TWO

1. 2. 3. 4. 5.

6.

Filmer, Patriarcha, 57. Rousseau, Du contrat social, 429–30; On the Social Contract, 198. Rousseau, Du contrat social, 429–30; On the Social Contract, 198. Schmitt, Verfassungslehre, 257 (§ 19). See, respectively: Fralin, Rousseau and Representation, 1–11; Miller, Rousseau: Dreamer of Democracy, 128; Manin, The Principles of Representative Government, 165; Masters, The Political Philosophy of Rousseau, 411–13; Derath´e, Jean-Jacques Rousseau, 279–80; Barber, Strong Democracy, 145 n. 6. So the maxim that “sovereignty cannot be represented” is “either irrelevant or at best highly questionable. . . . In any event his real objection to representation was not theoretical but practical; he was convinced, rightly or wrongly, that popular assemblies are more effective than representative

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assemblies in preventing or retarding executive usurpation of popular sovereignty” (Fralin, Rousseau and Representation, 11, 5–6). 7. It was no accident that he changed his mind on representation in mid-1754 (when he extended the “right of legislation” to “all citizens”), just after he completed his study of Geneva’s system of government. Fralin, Rousseau and Representation, 134–35; Rousseau, Discourse on Inequality, 27. Cf. note 99, below. 8. “Les d´eput´es du peuple ne sont donc ni ne peuvent eˆtre ses r´epr´esentants, ils ne sont que ses commissaires; ils ne peuvent rien conclurre d´efinitivement” (Du contrat social, 429–30). Helena Rosenblatt has called attention to the extraordinary similarity of Rousseau’s dualism between legislation through representation and direct voting by the people and the Repr´esentations or the list of grievances that Geneva’s bourgeoisie submitted to the General Council in 1734, in which one reads that being “born free,” the people of Geneva would soon be reduced to “slavery” if they did not have the right to assemble periodically and to approve taxes; in linking liberty and sovereignty, the document was framed in the same language as the Social Contract (Rosenblatt, Rousseau and Geneva, 132). 9. Derath´e, Jean-Jacques Rousseau, 252–64. The text in which Rousseau expressed a more benign opinion on representation is the Lettres e´ crites de la montagne, in which he stressed his opposition to popular initiative—so as to induce Vaughan to argue that he reduced the legislative power of the people to impotence (The Political Writings of Jean-Jacques Rousseau, 2:187–88). 10. Grotius, The Law of War and Peace, 2: chap. 22, sec. 11. According to Launay, the Genevan document against the Repr´esentations was the main enemy behind Rousseau’s theory of sovereignty’s indivisibility and inalienability ( Jean-Jacques Rousseau, e´ crivain politique, 434). This document used the argument of the natural law to define Geneva as a “mixed” republic or an “aristodemocracy” in which “the essential rights of sovereignty” were “shared” by the various components of the people; the opposite solution (direct ratification by the people) would be “pure democracy” or a government in which the “multitude” was outside (before) the contract and thus free to change any law as it pleased. With his theory Rousseau wanted to show that the assembly of the people could retain the right of ratification without the system becoming a “pure democracy” (Rosenblatt, Rousseau and Geneva, 134–35). 11. Merriam, History of the Theory of Sovereignty, 23. In the Middle Ages the inscription of the rule of the contract in the public law was completed. Both religious and secular communities accepted that the decision over the appointment of power was to be regulated by public law and that this appointment entailed that every power of a political kind (to make rules and laws) should bear “the character of the constitutional competence of some part of the Body Politic to ‘represent’ the Whole” (Gierke, Political Theories of the Middle Age, 61). 12. Rousseau, On the Social Contract, 198–99; cf. note 46, below.

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13. On the two theses concerning the genesis of representation, one claiming the continuity between the ancient and the modern world, and the other claiming discontinuity, see Clarke, Medieval Representation and Consent, 278– 316. An interesting case of “continuism” is that of Scipione Maffei, who some years before the publication of Montesquieu’s Spirit of the Laws wrote a comparative study on the institutional orders of some European states (France, England, and Holland) and went back to the “universal republic” of Rome in order to argue that thanks to representation Rome was a federative system able always to integrate new peoples by making them “companions” rather than subjecting them. The organization of the Roman peninsula (Italy) into thirty-three tribes allowed citizens and companions living in distant regions to participate in the process of decision held by the general assembly in Rome. According to Maffei, much earlier than the moderns, the Romans used political representation as an integrating and participatory strategy (Il Consiglio politico, 51). As Madison wrote a few decades later, Rome made representation a means of mediation and reconciliation. 14. As we shall see below, Rousseau’s source was d’Holbach (Repr´esentants), who derived representation and all forms of delegated institution from the “old German nations.” D’Holbach’s source was Tacitus’ Germania (§ 11), which described the forms of representation and parliamentary institutions used by the German tribes. But Montesquieu was the first to construct the theory of the government of the moderns or non-Latins (representative versus direct government) based on Tacitus (The Spirit of the Laws, bk. 11, chap. 6). A further important source is that of Jean Louis de Lolme (or Delolme), who in 1771 wrote a defense of English representative government against the myth of direct ruling (see the first English edition of his work, Constitution of England). 15. Rousseau, Lettres e´ crites de la montagne, 807. 16. On Rousseau’s paradoxical idea that the sense of the common could emerge by precontractual actors (self-effacing Hobbesianism), see Riley, Will and Political Legitimacy, 110, and the critical answer of Cohen, “Reflections on Rousseau,” 281–83. On the relationship between Hobbes’ and Rousseau’s mechanisms of equalization through the artificial (the contract), see Jaume, ´ Hobbes et l’Etat, 72–82. 17. Independent individuals agree to enter the contract to protect their persons and goods (Rousseau, Discourse on Inequality, 27; On the Social Contract, 141); cf. Miller, Rousseau: Dreamer of Democracy, 61–62. 18. For an analysis of the linkage between liberty (moral and political) and the general will, see Neuhouser, “Freedom, Dependence, and the General Will,” 363–95; for an interpretation of the general will as conscious expression of the general good, see Cohen, “Reflections on Rousseau,” 276–88. 19. Rousseau, Consid´erations sur le gouvernement de Pologne, 980; The Government of Poland, 37. 20. Rousseau, Lettres e´ crites de la montagne, 807–8.

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21. Kates, The Cercle Social, 51. 22. Fralin, Rousseau and Representation, 16; Rosanvallon, Le sacre du citoyen, 165. 23. Kinshlansky, Parliamentary Selection, 14, who also adds: “Individuals represented communities by virtue of the possession of these [the communities’] qualities not by reflecting the special interests or ideals of particular groups of constituents. . . . ideology was absent from the process of parliamentary selection” (16). An excellent example of the anti-individualistic and antideliberative character of representation as pure delegation and corporate symbiosis is offered by Althusius, who describes the representatives of the associations composing the pyramid of ascending corporate bodies as “serving as agents thereof according to the mandate and commission of their principals, to whom they must render an account of the things they have done upon returning home” (Althusius, Politica, 64). 24. Revel, “Les corps et communaut´es,” 225–42. 25. Derath´e, Jean-Jacques Rousseau, 290–91. 26. Doyle, “The Parlements,” 157–58. 27. Mounier, “Rapport du Comit´e charg´e du travail sur la constitution,” 866–67; Revel, “Les corps et communaut´es,” 225–42; Cochin, L’esprit du jacobinism, 81–82. 28. Rosanvallon, Le sacre du citoyen, 71. 29. As Carr´e de Malberg explained, the transformation of “the people” into “the nation”—of the existential into the symbolic—was the factor that allowed representation of society to be combined with the unity of authority (Contribution, 2:167–77, 202). 30. Cf. Ronsanvallon, Le sacre du citoyen, 46–47. On the noblesse commerc¸ante and the controversial debate on civic virtue and the new and old nobility, see de Baecque, The Body Politic. 31. D’Holbach, Repr´esentants, 362. 32. Monarchists and antimonarchists, supporters of the ancien r´egime and innovators alike believed that merchants, landowners, and more generally taxpayers were the backbone of the wealth of the nation as well as the moral representatives of a kind of republican noblesse. Although Rousseau grew increasingly hostile to commercialism, he shared the physiocrats’ ideal of a natural as rational order that combined utility and justice, economic independence and political independence. Cf. Weulersse, La physiocratie a´ l’aube de la R´evolution, 189–95. 33. However, even in the Discours sur l’´economie politique, Rousseau did not exclude direct legislation. Like Locke, he deemed consent crucial only on issues related to taxation: “taxes cannot be legitimately established except by the consent of the people or its representatives” (Rousseau, Discours sur l’´economie politique, 270; Locke, Second Treatise of Government, § 140). 34. Vile, Constitutionalism, 89; Montesquieu, The Spirit of the Laws, bk. 2, chap. 4. 35. Vile, Constitutionalism, 85–91; Berlin, “Montesquieu,” 157–59; Shackleton, Montesquieu, 248–64, and Richter, The Political Theory of Montesquieu, 20.

252

NOTES TO PAGES 70–73

36. “Intermediate, subordinate, and dependent powers constitute the nature of monarchical government, that is, of the government in which one alone governs by fundamental laws. I have said intermediate, subordinate, and dependent powers; indeed, in a monarchy, the prince is the source of all political and civil power” (Montesquieu, The Spirit of the Laws, bk. 2, chap. 4). See Shackleton, Montesquieu, 279. 37. D’Holbach endorsed the same view, and while he accused the “esprit de Corps” of destroying the “esprit patriotique,” he acknowledged that the people, while not competent to judge issues, were competent to judge the merits of the candidates (La politique naturelle, 166–70). 38. “His insistence that the sovereign people should make the laws in person, was in the interests of an undivided and unlimited sovereignty” (Osborn, Rousseau and Burke, 182). 39. Derath´e, Jean-Jacques Rousseau, 264–66. 40. Filmer, Patriarcha, 96. 41. A detailed historical reconstruction can be found in Carlyle and Carlyle, A History of Medieval Political Theory, 5: chaps. 5–6. 42. Aquinas, Summa Theologica, Questions 90 (third and fourth articles) and 92 (first and second articles); Marsilius of Padua, Defensor Pacis, 45. Marsilius’ contribution to the modern category of sovereignty consisted in separating out its sociological aspect (“the people or the whole body of citizens”) from its normative function (the source of legitimacy of the law “regardless of whether it [the sovereign] makes the law directly by itself or entrusts the making of it to some person or persons.”) 43. Franklin, Jean Bodin, 164–80. It is however certain that the king of France always had the power of initiating a law as he pleased—in that he held more power than Rousseau’s collective sovereign and did not passively endorse the suggestions of the members of the parliament nor solely ratify the proposals his “counsellors” proposed to him (Crahay, “Jean Bodin aux Etats G´en´eraux de 1576,” 88–89). 44. The modern theory of sovereignty renewed the Roman conception of the single master (the Emperor) monopolizing and enjoying the plentitude of power. The rehabilitation of the Imperial Roman tradition is epitomized in the transition from the empire of the law to the empire of the sovereign, or from a law whose authority was based on the agreement of the whole community to a law whose authority derived directly from the will of the king. The Roman Emperor played an important mediating role in this transition. Indeed, even if the constitutional theory of the Roman Empire conceived the authority of the Emperor as given to him by the community (delegated authority), the Emperor was in fact the legislator. Justinian is a case in point. However, historians have detected the seeds of this transformation in Augustus’ reform, since although it stated that the Princeps could not legislate but only make decrees while only the Senate retained the power of making the laws (ratification), in fact the Princeps became the only proponent and

253

NOTES TO PAGES 73–74

45.

46.

47.

48.

49.

50.

254

the only legislator. The paradox was that, owing to the distinction between laws, on the one hand, and decreta, mandata, and epistola (that is, administrative decisions, proposals, and replies or petitions), on the other, the Senate retained the right to make laws (senatus consulta) because none of those initiatives could become law without its approval, but in fact its power became simply a power of promulgation, all formal and substantially empty, much like Rousseau’s assembled people; cf. Scullard, From the Gracchi to Nero, 220. For a suggestive theoretical and historical overview of the modern formation of the plenitude of power at the end of the medieval ladder of commands, see Jouvenel, Sovereignty, in particular chap. 10. In ancient Rome—which Bodin, like Rousseau later on, took to be the model of the republic—sovereignty “remained in the people” even when “its exercise” was delegated to one or more magistrates (Bodin, On Sovereignty, 2–5). Rousseau considered Roman tribunes the only good examples of representation (On the Social Contract, 198–99). On the relevance of the work of Bodin ´ to Rousseau, see Derath´e, Jean-Jacques Rousseau, 252–64, and Jaume, Echec au lib´eralisme, 18–21. Bodin, On Sovereignty, 23. Parliaments hold power in trust because “their resolution would be of no effect without her [the queen of England’s] will . . . the Estates have no power of deciding, commanding, or determining anything, seeing that they cannot meet or dissolve without an express command” (20–21). See, respectively, Filmer, Patriarcha, 47, and Rousseau, Du contrat social, 427; On the Social Contract, 197. Rousseau was familiar with “the detestable system” of Filmer’s Patriarcha (Discours sur l’´economie politique, 244). Will and the judgment served also to distinguish between law and decree. Laws flowed from the will; decrees from judgment; both were equally legally binding decisions but differed in that the former only was endowed with full creative power, the power to transform proposals into authoritative commands. Decrees were instead parasitical on laws since they were meant to implement a general law. Ratification defined the pattern of behavior or the norm prescribing the action in general and abstract terms. Interpretation and judgment were crucial in the act of implementation or to subsume particular actions and circumstances (Aquinas, Question 90, third and forth article). In Rousseau’s words, the law “cannot name specific persons,” but the decree takes the particular and the contingent as its object. Thus the former only needs to be the voice of the sovereign (Rousseau, On the Social Contract, 161). “. . . the ordinary duty of a counsellor is to advise the king what he himself shall do, or cause to be done. The judge represents the king’s person in his absence; the counsellor in the king’s presence gives his advice.” As soon as the sovereign takes the power to judge in its own hand, its presence annuls the magistrates’. “And the ordinances that are made there, receive their establishment either from the king’s presence in parliament—where his

NOTES TO PAGES 74–78

51.

52. 53. 54. 55.

56. 57.

58. 59. 60. 61.

62. 63. 64.

65. 66. 67.

chair of state is constantly placed—or at least from the confirmation of him” (Filmer, Patriarcha, 94, 96). The sovereign has “the right of judging in the last instance [or final appeal],” and when it decides to exercise that right directly it steps symbolically into the court and silences the judge (Bodin, On Sovereignty, 67). “In the presence of the represented, there can be no representation” (Wokler, Rousseau, 65). In his Lettre a` d’Alembert (1758), three years after he had abandoned the idea that a legitimate government could be representative, Rousseau opposed public “direct” festivals to comedies by professional actors “representing” people’s sentiments and emotions before a passive audience. One may be tempted to read Rousseau’s opposition as a polemical answer against chapter 16 of Hobbes’ Leviathan. On Rousseau’s aesthetic argument against representation see, Dugan and Strong, “Music, Politics, Theater,” 329–64. Rousseau, Lettres e´ crites de la montagne, 845. Filmer, Patriarcha, 94–96. Rousseau, On the Social Contract, 199. As for the anachronistic idea that there is “nothing Rousseau insists on more than the active and ceaseless participation of the people and of every citizen in the affairs of the State,” see Talmon, The Origins of Totalitarian Democracy, 47. Hegel, Philosophy of Right, § 258. His Discours sur l’´economie politique says that “the most absolute authority is that which penetrates into a man’s inmost being, and concerns itself no less with his will than with his actions” (251). Derath´e, Jean-Jacques Rousseau, 260. Rousseau, Discourse on Political Economy, 114. Rousseau, On the Social Contract, 177. “For the rest, a deputy’s constituents, provided he has done nothing contrary to their expressed wishes, are not going to deem it a crime if, speaking merely as a good citizens, on some unforeseen topic concerning which they have made no decision, he has expressed an opinion” (Rousseau, The Government of Poland, 37; Consid´erations sur le gouvernement de Pologne, 980). Friedrich, Man and His Government, 309. Kant, The Metaphysics of Morals, §§ 51, 52; and “On the Common Saying,” 74. Shklar, Men and Citizens, 170, 188. Along a similar line of thought, Dahl has argued that since inclusion in the whole process of decision-making was not Rousseau’s criterion of political equality, he “may, in fact, have anticipated Schumpeter’s solution” (Dahl, “Procedural Equality,” 114). Rousseau, Discourse on Inequality, 28. Shklar, Men and Citizens, 201; Rousseau, Manuscrit de Gen`eve, 294. Rousseau, Consid´erations sur le gouvernement de Pologne, 978. “The dietines should draft the instructions to their deputies (nonces) with great care, with an eye both to the topics listed in the convocation and to the current

255

NOTES TO PAGES 78–82

68.

69. 70.

71. 72. 73.

74.

75. 76.

77. 78.

79.

80.

256

needs of the state or the province” (Rousseau, The Government of Poland, 36). In a democratic society, participation can take a variety of forms (citizens’ inventiveness is an important aspect of the democratic character of politics) whose effectual strength can hardly be mathematically calculated like votes, although it can be diagnosed (Ackerman and Fishkin, Deliberation Day, 153–54). Rousseau, Discourse on Inequality, 30; Discourse on Political Economy, 118. “. . . et la vrai caract´ere de la souverainet´e est qu’il y ait toujours accord de Tems, de lieu, d’effet, entre la direction de la volont´e g´en´erale et l’emploi de la force publique, accord sur lequel on ne peut plus compter sitot qu’une autre volont´e, telle qu’elle puisse eˆtre dispose de cette force” (Rousseau, Manuscrit de Gen`eve, 296). Ricoeur, “Between Rhetoric and Poetics,” 327. Rousseau, Lettre a` d’Alembert, 25–42, and De l’imitation th´eaˆ trale, 1198–1211. Rousseau, Discourse on Inequality, 30. The interplay between the virtue of the magistrates and the limited popular participation is clearly theorized in the dedication of this Discourse. On the interpretation of the norm (the law) as the code of the public reality (normativity as descriptivity), see Dugan and Strong, “Music, Politics, Theater,” 331. Rousseau, The Government of Poland, 40–41. The best argument I know of that overturned Rousseau’s was made by Kelsen in early 1920s when he claimed that dialectics between majority and minority is the rule of democracy, not unanimity. This makes deliberation a relevant aspect of democratic politics, not a sign of its imperfection (Kelsen, Vom Wesen und Wert der Demokratie, chap. 6). Rousseau, Essai sur l’origine des langues, 425. He preferred the language of music to that of theater and rhetoric because it would guide the mind to turn its attention inward, away from the fictitious world of representation and theatrical performance. Cf. Dugan and Strong, “Music, Politics, Theater,” 342–44. Imagination played an extraordinary role in Western philosophy as the only human faculty endowed with quasi-divine creative power. From Cicero, who called it divinatio to magnify its extraordinary and almost miraculous power in human society, to Hobbes, who blamed it for the dissension it provoked within the body politic, to Antonio Gramsci, who made it the tool of the “new Prince” for the reshaping of human beliefs, imagination has been deemed the source of the symbolic world of beliefs and the laws, customs and habits which make human societies exist, endure, and change. “All these fine speeches with which you hope to make him [the child] good, are preparing the way, so that the visionary, the tempter, the charlatan, the rascal, and every kind of fool may catch him in his snare or draw him into his

NOTES TO PAGES 82–85

81.

82. 83.

84.

85.

86.

87. 88.

89.

´ folly” (Emile, 169). Cf. Dugan and Strong “Music, Politics, Theater,” 338–39; Strong, Jean-Jacques Rousseau, 92–93. ´ Rousseau, Emile, 179. The model for the kind of (civic) education that ´ Rousseau proposes for the citizens is Emile, who has to go through a “solitary education” (82). Rousseau, Manuscrit de Gen`eve, 307. In his Lettre a` d’Alembert (90–96), he proposed to replace theaters with the festivals and “cercles,” the latter being an old Genevan institution similar in kind to London’s clubs and coffee houses. The “cercles” were not, however, partisan clubs, nor aggregations for large groups of people. They were civic clubs wherein the citizens learned to take care of the public matters of their town; they were not mobilizing forces nor interest-oriented gatherings. These civic fraternities, the public games, and the festivals were meant to bind the citizens to the life of their city; cf. Fralin, Rousseau and Representation, 62–65. See, respectively, Rousseau, On the Social Contract, 219; Shklar, Men and Citizens, 201; and Rousseau, Manuscrit de Gen`eve, 294. Yet institutional action is not the people’s prerogative. Delegated politics is the site of both the life and the death or corruption of the body politic, because while it keeps it alive, united and strong, it can also make it sick, dismembered and weak. The source of the republic’s life can also be the source of its death. “But I would not have approved of plebiscites like those of the Romans where the state’s leaders and those most interested in its preservation were excluded from the deliberations on which its safety often depended, and where, by an absurd inconsistency, the magistrates were deprived of the rights enjoyed by ordinary citizens” (Rousseau, Discourse on Inequality, 27). He cited the Roman republic to make his point that deliberation in the public assembly results in the wisest or the “most interested” being silenced or ignored. Representative democratic constitutions have retained Rousseau’s principle in the form of the abrogative referendum. However, it should be noted that ratification and referendum, although forms of popular oversight of the magistrates, function quite differently because the referendum creates a delay in the legislative process, which Rousseau wanted instead to avoid, and moreover because referendum responds to an existing law rather than making the law ex novo. ´ Rousseau, Emile, 200 and 86, for the previous citation; a superb analysis of “reflection” has been made by Starobinski, Jean-Jacques Rousseau, chap. 8. Rousseau’s distinction between natural reasoning and artificial judgment mirrors Hobbes’ distinction between “natural wit” and acquired reasoning (Leviathan, chaps. 7–8). Hobbes Leviathan, chap. 5. Rousseau’s logic is similar: “The more we know, the more mistakes we make; therefore ignorance is the only way to escape ´ error. Form no judgments and you will never be mistaken” (Emile, 200).

257

NOTES TO PAGES 85–86

90. “. . . il n’y a point d’autre m´ethode par laquelle on puisse eˆtre assur´e de donner toujours la pr´ef´erence au plus vrai m´erite” (Rousseau, Polysynodie, 623). 91. The “leaders” must be “wise” and “virtuous” since they have to decide when a new law is needed and which new laws are needed (Rousseau, Discourse on Inequality, 30). 92. The laws should be made, Filmer said, so that “there might be no need to resort to the king but either for the interpretation or mitigation of obscure or rigorous laws, or else, in new cases, for a supplement where the law was defective” (Patriarcha, 41). Along the same lines, Rousseau thought that a state with good laws could function without the sovereign having to do too much (Discourse on Political Economy, 118). 93. Rousseau, Fragments Politiques, 484–85. In the Social Contract, he distinguishes between “extraordinary assemblies” that deal with “unforeseen situations” and “periodic assemblies” for ordinary legislation that cannot change or abolish every law (bk. 3, chap. 14). 94. Rousseau, Discourse on Political Economy, 114–17. 95. Although one should note that this leader-oriented view belonged more to his Discourse on Political Economy than to the Social Contract. However the problem remains since it is unclear how the people can elect good delegates if they are not supposed to listen to their different opinions and choose between them on this basis. Presumably, in a small republic people know each other without the artificial medium of speech, and direct knowledge makes orators useless, “those noisy animals that continually disturb the public repose” (Discourse on Inequality, 30). Like charismatic leaders, Rousseau’s virtuous leaders seem to impose themselves by their own authority without being selected in an open competition. 96. Rousseau, Fragments politiques, 484. 97. Rousseau, Manuscrit de Gen`eve, 294–95; On the Social Contract, 153. 98. Rousseau, The Government of Poland, 42. 99. Rousseau, Polysynodie, 634. In 1756 Rousseau was given an offer to make an abstract of the Abb´e de Saint-Pierre’s writings while he was writing his Social Contract. He interrupted his work at the beginning of book three, after he had defined the concept of popular sovereignty but not yet clarified its relationship to the government. The Abb´e de Saint-Pierre’s Polysynodie (1718) made a criticism of absolutism and proposed a moderate monarchy; his main concern was Locke’s liberal constitutionalism or how to counter the aggregation of interests and party politics; the solution he proposed in order to preserve the integrity and authority of the sovereign king consisted in separating deliberation (by the delegates) and decision (by the sovereign). Rousseau’s reading of Polysynodie was pivotal for his subsequent criticism of the intermediary bodies and the rejection of representation, in substance of Locke’s model of the two contracts. 100. Rousseau, Manuscrit de Gen`eve, 294–95.

258

NOTES TO PAGES 86–95

101. Barry, “The Public Interest,” 10–11. On Rousseau’s interpretation of the common good as explicated in terms of the interests of the individual citizen, see also Keohane, Philosophy and the State in France, 439–48. 102. Rousseau, Manuscrit de Gen`eve, 306. See Waldron’s essay in the debate on “Democratic Theory and the Public Interest,” 1324–25. 103. Rousseau, Du contrat social, 374; On the Social Contract, 157. Like the physiocrats, Rousseau made representation synonymous with particular interests whose expression was preference, thus opinion, not reason (Rosanvallon, Le sacre du citoyen, 165). 104. Rousseau, On the Social Contract, 158. As Rosanvallon has argued, the general will does not proceed from an electoral kind of arithmetic (Le sacre du citoyen, 168). 105. Rousseau, Jugement sur la Polysynodie, 644–45. 106. I shall discuss Condorcet’s theory in the last chapter. 107. Indeed, while he embraces the myth of a Spartan harmony, he also acknowledges the right to property, the main source of the factors that will corrupt the harmony. 108. Shklar, Men and Citizens, 20. For a different analysis of the idea of “man” and amour propre, see Dent, Rousseau, 65–71. 109. Rosanvallon, Le sacre du citoyen, 165–66. 110. Elster, Ulysses Unbound, 23. 111. Both Corneille’s and Balzac’s maxims are cited in Littr´e, Dictionnaire de la langue franc¸aise, s.v. “D´elib´erer.” 112. Rousseau, Discourse on Inequality, 54, 55. “Nature never deceives us; we deceive ourselves,” and judgment is the deceptive faculty because in its active or creative function it compares and discriminates according to men´ tal associations that are more and more distant from our sensation (Emile, 199). 113. Rousseau, Discourse on Inequality, 55. Cf. Viroli, Jean-Jacques Rousseau, chaps. 1–2. For a discussion on the relationship between “pity” and “reason,” see Neuhouser, “Rousseau on the Relation between Reason and Self-Love,” 222–39. 114. Rousseau, Discourse on Inequality, 54. 115. Rousseau, Discourse on Inequality, 54. Cf. Starobinski, Jean-Jacques Rousseau, 207. 116. Schelling, The Strategy of Conflict, chap. 3. 117. Rousseau, On the Social Contract, 153. 118. Rousseau, Manuscrit de Gen`eve, 307. 119. Rousseau, Consid´erations sur le gouvernement de Pologne, 974; The Government of Poland, 29–30. 120. See on this aspect Rosanvallon, Le sacre du citoyen, 167. 121. Bodin, On Sovereignty, 1 122. Hobbes also made a crucial distinction between will and judgment when he separated the act of decision from that of reflection and interpretation; the

259

NOTES TO PAGES 95–98

former was situated in the present, while the latter took place in the past and the future, respectively. 123. “Chaque acte de souverainet´e ainsi que chaque instant de sa dur´ee est absolu, ind´ependant de celui qui pr´ec´ede et jamais le souverain n’agit parce qu’il a voulu mais parce qu’il veut” (Rousseau, Fragments politiques, 485). 124. Rousseau, Du contrat social, 362; On the Social Contract, 149. For an analysis of the character and contradictions inherent in the identification of sovereignty with the making of contract and the moral a priori of all obligation, see Riley, Will and Political Legitimacy. 125. “Or la loi d’aujourdui ne doit pas eˆtre un acte de la volont´e g´en´erale d’hier mais celle d’aujourdui,” Rousseau, Manuscrit de Gen`eve, 316; on “representation and time,” see Strong, Jean-Jacques Rousseau, 90–94. 126. I owe the phrase to Ackerman, “Neo-federalism?” 127. Holmes, “Precommitment and the Paradox of Democracy,” 197. 128. See in particular Wolin’s Politics and Vision, chap.17. 129. Elster, Ulysses and the Sirens, 93. 130. Clearly, enforcing constitutional constraints does not eliminate the “risk” that people of “charismatic character” could emerge. What this means, though, is not that obedience to constitutional laws is an act of will but that a substantial inequality exists among individuals and that, like Callicles in the Gorgias or Nietzsche would say, the value of freedom is measured by the character of the actor. Making and remaking rules is heroic, obeying them is not. 131. Elster, Ulysses and the Sirens, 94. On the weakness of extending Ulysses’ rationality to collective decision settings and constitutional founding as precommitment, see Waldron, Law and Disagreement, 267–71. 132. Cf. Arendt, “What is Freedom?” and “What is Authority?” in Between Past and Future. 133. For the parallel between the theory of political freedom as the will and electoral democracy, see Pitkin, The Conception of Representation, chap. 3. For the relation between the application of scientific methodology to political theory and the identification of freedom as freedom from politics, see Arendt, Between Past and Future, 155. ´ 134. Sieyes, Ecrits politiques, 199, 63. 135. Arendt has proposed the best contemporary rephrasing of this “political” view of freedom in time (Between Past and Future, 161). See also Holmes, who specifies that the precommitment is made to certain principles or fundamentals, rather than procedures, that allow for the continuity of the political community through its experiences of loyal oppositions or political disagreements (“Precommitment and the Paradox of Democracy,” 232–35). The temporal or historical factor is thus essential in order to amend the voluntarism of the foundation. 136. Rousseau, Discours sur l’in´egalit´e, 177.

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NOTES TO PAGES 98–104

137. Rousseau, Du contrat social, bk. 3, chap. 15. On Rousseau’s idea of the desire for immediate communication as a sign of a perfection that belongs to God alone and the mark of human imperfection, see Starobinski, Jean-Jacques Rousseau, 139–67. 138. Rousseau, De l’imitation th´eaˆ trale, 1205, 1199. 139. Laclau, “Power and Representation,” 88–89. 140. See for instance the chapter “On Voting” in On the Social Contract. 141. Cf. Cohen, “Reflections on Rousseau,” 276–77. 142. Starobinski, “A Letter from Jean-Jacques Rousseau,” 31–32. 143. Rousseau, On the Social Contract, 171. 144. Rousseau, Manuscrit de Gen`eve, 295. CHAPTER THREE

1.

Kant was actually more realist than Hobbes, who acknowledged individual resistance in self-defense (Kant, “On the Common Saying,” 81–82). Kant has inspired three basic approaches: he has been accused of dogmatism and dismissed as a normative thinker (Russell, Unpopular Essays, 53); his political philosophy has been ignored as insignificant (Arendt, Lectures on Kant’s Political Philosophy, 9); post-Rawls theorists have tried to reconcile his political and moral ideas (“If the integrity of Kant’s political system is to be maintained, this apparent inconsistency must be explained in a convincing manner”; Riley, Will and Political Legitimacy, 160). 2. Rousseau, On the Social Contract, 198. 3. The “ideas of generality and will are mutually exclusive. Will, whatever its crudity as a psychological construct, is characteristically a concept of individuality, of particularity; it is only metaphorically that will can be spoken of as general” (Riley, Will and Political Legitimacy, 112). 4. More precisely, the fewer demands on citizens’ time, the fewer demands on space. 5. For an interesting line of argument concerning the idea of easing the burden of deliberation in mass society by “altering our focus from the ‘externalcollective’ to the ‘internal-reflective,’” see Goodin, “Democratic Deliberation Within,” 53–79. 6. Kant, “Perpetual Peace,” 100–101. 7. Kant, The Metaphysics of Morals, 125–27, and “Perpetual Peace,” 99. 8. Kant, “On the Common Saying,” 74. 9. Kant, Critique of the Power of Judgment, 66–67. 10. Kant, The Metaphysics of Morals, 75. 11. Cf. Habermas, The Structural Transformation of the Public Sphere, 96–98. In relation to humanity (or the other republics), Shklar wrote, Rousseau’s sovereign is as self-concerned and particularistic as an individual might be in the state of nature: “For Rousseau the general will pursued nothing but hard personal interest, even if it was an interest that citizens shared. . . . Far from

261

NOTES TO PAGES 104–110

12. 13. 14. 15.

16. 17.

18.

19.

20.

21. 22.

262

concerning itself with all mankind, it owed its inspiration to xenophobia. . . . Nothing could be more remote from the cosmopolitan and aristocratic values of Voltaire and the Parisian intellectuals” (Men and Citizens, 169). Rousseau, On the Social Contract, bk. 1, chap. 7. Kant, “Perpetual Peace,” 101. Like Rousseau, Kant rejected democracy because it put the legislative and the executive powers in the same hands (“Perpetual Peace,” 101). The most recent attempt to separate the implicit from the explicit insight of Rousseau’s theory of the general will has been made by Barry, “The Public Interest,” 9–18. Although Barry does not acknowledge it, this interpretation is part of Kant’s legacy, since Kant was the first, as I shall explain in this chapter, to separate actual from normative will in Rousseau’s theory of the general will. Kant’s approach has been followed among others by Cassirer (The Question of Jean-Jacques Rousseau, 58–64) and Bobbio (Teoria generale della politica, 45). This interpretation of Rousseau is an alternative to the one that sees him as a “collectivist” or the precursor of the totalitarian project. Cf. Waldron, “Rights and Majorities,” 59. Rousseau’s general will relies upon a deterministic use of the norm that resembles Montesquieu’s use of the concept of esprit or the constitution. For an excellent analysis of the hypothetical foundation of Rousseau’s will, see Leoni, Scritti di scienza, 70–72. Bryce, The American Commonwealth, 2:909–28. But see also Waldron, “Rights and Majorities,” 58. In this sense Rousseau could write that “the closer opinions come to unanimity, the more dominant too is the general will” (On the Social Contract, bk. 4, chap. 2). “. . . the Political does not pertain in particular to finance, war, or commerce, but to the relation all these parts have with a common object,” and the proportional role each of them plays varies in many ways, according to the views and ideas of the citizens concerning the actual situation in which their republic finds itself (Rousseau, Jugement sur la Polysynodie, 641). This is, I would say, the Hegelian aspect of Rousseau—the same aspect that can be found in Rawls when he distinguishes between three levels of publicity and justification of the public conception of justice and concludes that the first principles (of justice) are “embodied in political and social institutions and in public traditions of their interpretation. . . . the full justification [of the public conception of justice] is present in the public culture, reflected in its system of law and political institutions, and in the main historical traditions of their interpretation” (Political Liberalism, 71, 67). We must of course exclude a priori that the majority is dishonest because in this case there would be no body politic to begin with, and no general will. Hence, public opinion has two connotations: it is a determinant force of the factual reality (evidence that the state subsists and laws are successfully enforced) and a determinant force of the normative reality (a sign that confers value to factual reality). The risk of this double connotation rests on the fact

NOTES TO PAGES 110–115

23.

24.

25. 26. 27. 28.

29.

30. 31.

32.

that people might confuse longevity for legitimacy (as Montesquieu might seem to imply) or think that disagreement with public opinion means revenge of the minority against the majority (or democracy). So it is important to separate that dual connotation and to be aware that public opinion can be a guide to explanation as well as to justification; it can both be used to justify the status quo and to evaluate the consistency of the actual order with its foundations. In this, public opinion partakes of the duality that characterizes the theory of the social contract, which can be a strategy to give reasons to the actual (Hobbes) or a strategy to make the actual rational or consistent with reason (Rousseau); it is logical and explanatory on the one hand and deontological and normative on the other (Bryce, The American Commonwealth, 2:916–17; Leoni, Scritti di Scienza politica, 55–79). Condorcet, “Exposition des principes et des motifs du plan de constitution,” O, 12:342–52. As political scientists know, voter participation is higher in that part of the population that has more access to information about political decisions and is more involved in organizations or associations; Lipset, Political Man, 30–37, 187–219; Putnam, Making Democracy Work, 99–116. Bobbio, Teoria generale della politica, 415; Barry makes a similar argument (“Is Democracy Special?” 51). A modern example of Rousseau’s yes/no decision without deliberation (and representation) is Downs’ view of the political process as a simple two-party (two options) competition that assumes any issue must be reduced to two alternatives in order to be subject to democratic decision. Cf. Gauchet, La r´evolution des pouvoirs, 64–66. I’ll come back to this issue in the next chapter. ´ Sieyes, Ecrits politiques, 237–38. Bourdieu, Trait´e de science politique, 5:250. In a socialist society, “representative institutions remain, but there is no parliamentarianism here as a special system, as the division of labor between the legislative and the executive, as a privileged position for the deputies”; representative assemblies are no longer “talking shops” but true ruling or “working bodies” (Lenin, State and Revolution, 211). This is just as much elitism though: “As long as interests are similar,” Mansbridge wrote, “it makes sense to let the more competent have more power” (Beyond Adversary Democracy, 80). Bourdieu, Trait´e de science politique, 5:250. “The faculty which God has given man to supply the want of clear and certain knowledge, in cases where that cannot be had, is judgment: whereby the mind takes its ideas to agree or disagree; or, which is the same, any proposition to be true or false, without perceiving a demonstrative evidence in the proofs”; Locke, An Essay Concerning Human Understanding, 361 (chap. 14). Arendt (Lectures on Kant’s Political Philosophy, 58–65) emphasized the applicability of Kant’s theory of judgment to court decisions; but it is not hard to see how crucial its role can be if used to redefine politics beyond its

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33. 34.

35. 36. 37.

38.

39. 40. 41. 42.

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modernist identification with the will or ratification. See Kant, “On the Common Saying,” 84–85. Kant, Anthropology, 127. This explains the originality of Kant’s legal positivism. On the one hand, Kant frequently appeals to morality in politics and expresses his preference for the moral philosopher over a Machiavellian “practical politician” (“Perpetual Peace,” 93), without however accompanying such moral exhortations with the inclusion of morality into the criteria for valid legislation (antipaternalist clause). On the other hand, he is a kind of legal positivist who surmises that there is a general connection between the legal and the moral domains. As Waldron notes, his very idea that law should not be equated with morality is in itself a moral position (Waldron, “Kant’s Legal Positivism,” 1541). In this sense, it may be correct to say that his positive law rests on a moral foundation although he does not make positive law depend on morality for validation (Taraborrelli, Cosmopolitismo, 24–25). Kant, The Critique of the Power of Judgment, 123 (§ 22). Waldron, “Kant’s Legal Positivism,” 1535–66; Raz, The Authority of Law, 210. This is why Galston and Larmore argue that Kant’s liberalism has “moral underpinnings.” (Cf. Galston, “What Is Living and What Is Dead”; Larmore, The Morals of Modernity, 41–64.) However, the freedom Kant talks about is political freedom, and this arguably implies only procedural principles of republican self-determination, not a substantial notion of moral autonomy. With regard to the political domain, Kant proposes a negative rather than a positive conception of freedom. I learned a great deal from Malkis’ paper, “Resisting Resistance: Kant on Authority and Disobedience.” Kant, Critique of Practical Reason, 125–26. Among the “incentives,” Kant included the reformation of the state so as to make its constitution “suited to the Idea of the original contract” (The Metaphysics of Morals, 148). Friedrich has stressed the distinction between an abstract and analytical use of ideas (putting together Descartes and Rousseau) and the ideational and creative use of them proposed by Kant (Man and His Government, 84–85). Kant, The Metaphysics of Morals, 147–49 (§ 52). Cf. Wiggins, “Deliberation and Practical Reason,” 232–34. Pitkin, The Concept of Representation, 111. Mansbridge calls the relation of sympathetic similarity between citizens and representatives “gyroscopic representation.” “In this model of representation,” she writes, “voters select representatives who can be expected to act in ways the voter approves without external incentives” such as those implied in traditional accountability (whether prospective or anticipatory). “Their [the representatives’] accountability is only to their own beliefs and principles” (“Rethinking Representation,” 520). Mansbridge describes ideological identification as a communitarian kind of unity, more important in the time of formation of candidates and agendas than in the checking time of electoral accountability because voters’ faithfulness to ideals and values

NOTES TO PAGES 118–121

43.

44. 45. 46.

47.

48.

49. 50.

51.

can veil the objectivity of their judgment. Although it echoes too closely the totality-ideology that was peculiar to mass parties, Mansbridge’s “gyroscopic representation” is a good starting point for rethinking the creative role of ideas in the process of representation. Dryzek, Deliberative Democracy and Beyond, 8. For an inspiring criticism of old and new forms of rationalism and positivism, cf. Rorty, Contingency, Irony, and Solidarity. Habermas, “Reconciliation,” 109–15. Habermas, Moral Consciousness, 71. The Weberian conception of wertrationalit¨at as a rationality that is based on consideration for values or an appeal to what Pareto would call derivations is an essential point of reference for any work of reinterpretation of ideology in deliberative politics; an interesting correlation between parliamentary politics and the rhetorical dimension of politics can be found in Palonen, “Max Weber,” 135–42. Skinner, “Retrospect,” 175–87. Pareto’s theory of derivations is still a useful guide to a study of ideologies as theories thanks to which social actors give a foundation to their judgments and choices. I also endorse Friedrich’s criticism of Karl Mannheim’s psychologizing approach to ideology, deeply conditioned by the preoccupation of exorcizing Marxism. “In the political perspective, it is not of primary importance whether ideology contains misrepresentations or not. . . . Ideologies are action-related systems of ideas. . . . It is confusing and fails to provide the opportunity for political analysis, to call any system of ideas an ideology” in Marx’s (and Mannheim’s) sense (Friedrich, Man and His Government, 88–89). Kant, Critique of Pure Reason, 272–73 (A138/B177; B179/A140). The application of Kantian aesthetic judgment to political judgment as been pursued by Arendt (Lectures on Kant’s Political Philosophy, 7–27), who saw it as alternative to the modernist views of the politics of the will and the politics of instrumental action (the legacies of Rousseau and Hobbes). The relevance of the theory of political judgment as distinct from logical/scientific judgment in the revision of the decisionist view of politics (whether in the form of the will or strategic action) has been elegantly explained by Steinberger, The Concept of Political Judgment. See, respectively, Kant, Anthropology, 56, and Critique of Pure Reason, 256 (B151). Kant, Critique of Pure Reason, 274(A142), 256–57 (B151–B152), 273–76 (A141–B187). “In the same way, if that in us which we call ‘representation’ were active with regard to the object, that is, if the object itself were created by the representation . . . the conformity of these representations to their objects could be understood” (from a letter of Kant cited in Longuenesse, Kant and the Capacity to Judge, 19). Longuenesse, Kant and the Capacity to Judge, 19.

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NOTES TO PAGES 122–124

52. Kant, Critique of the Power of Judment, 67(Intro. IV), 257–60 (§§69–71). A “political artist, just as well as an aesthetical artist, can guide and rule the world (mundus vult decipi) by imagination if he knows how to make a false show of reality, for example, of freedom of a people (like that in the English Parliament), or of rank and equality (as in the French Convention), which consist in mere formalities” (Kant, Anthropology, 72–73). 53. Cf. Longuenesse, Kant and the Capacity to Judge, 207. See also the penetrating reading proposed by Cavell, Must We Mean What We Say? 89–90. 54. Kant, Critique of the Power of Judgment, 214 (§ 56); Steinberger, The Concept of Political Judgment, 153–38. 55. Kant, The Metaphysics of Morals, 148 (§ 52). “Ideas in the most general meaning are representations related to an object in accordance with a certain (subjective or objective) principle, insofar as they can nevertheless never become a cognition of that object” (Kant, Critique of the Power of Judgment, 217 [5:342]). This is a crucial point since the “ideological” foundation of our judgment can lead us to the extreme outcome that everything is relative and deeply marked by unreason and irresolvable emotivism so that any overcoming of subjectivity is arbitrary anyway. Yet Kant suggests that it is desirable and actually morally necessary for us to choose the path of clarification and consent formation rather than that of realistic resignation to and subjective indifference toward the dichotomous nature of our generalization (Steinberger, The Concept of Political Judgment, 155–57). 56. Kant, “On the Common Saying,” 79; Rawls, “The Idea of Public Reason Revisited,” 577 (emphasis added). 57. Pitkin, The Concept of Representation, 158. 58. Kant, “On the Common Saying,” 79. 59. Hence Steinberg speaks of an encounter between this Kantian theme and kinds of themes that involve fortuna in Machiavelli’s sense and the rhetorical (and dissenting) dimension of the probable (The Concept of Political Judgment, 57 no. 100). 60. This mechanism is common to all disciplines and practices, from science to narrative, from politics to economics. Elgin, Considered Judgment, 183–92; Goodman, Fact, Fiction, and Forecast, 63–64. 61. There can be different kinds of fictions such as “abstractive” and “schematic” (or paradigmatic) fictions (the difference will appear in a while when I distinguish between judgment in justice and judgment in politics). The former consists in deliberately ignoring some empirical factors (neglecting strategy) in order to create a category of actions or things. An example of this is Adam Smith’s fiction of selfishness, which he created by neglecting all motives but economic interest and treating individuals as if they were merely economic beings. The “schematic” fiction consists instead in figuring out a fantastic (as nondescriptive) reality in order to validate or give more value to empirical facts or reality, as in the case of the idea of sovereignty or of a social

266

NOTES TO PAGES 124–125

62.

63.

64.

65.

66.

contract. Rhetorical fictions are of this sort since they imaginatively construct cases in order to produce a proof strong enough to convince the audience to make a decision and translate the ideal into reality. The best analysis of the many forms of as if judgment associated with fictional reasoning has been proposed in the form of “philosophy of the as if ” by an old Kantian philosopher, Vaihinger, Die Philosophie des als ob. Beccaria, Dei delitti e delle pene, §§ 4, 30. The logic of presumption of innocence was applied to political decisions by Condorcet, who sought to solve the problem of arbitrariness implied in majority rule (Essai sur l’application, 23). Problems of justice, he wrote, arise when people must submit to decisions they do not agree with; a decision acquires moral legitimacy insofar as it is derived from an as if inference, that is to say from a judgment of justice rather than mere force (the number of votes). Majority rule does not give rise to issues of arbitrariness because and insofar as the opinion to be voted on by majority rule has been deduced by its supporters as if it were truth or its approval would be unanimous (Kant would give these criteria of justice the name of universalability). Kant clarified the important innovation coming from this use of practical reason in politics in his critical analysis of Epicureans and Stoics. Their fallacy, if one may use this improper word, consisted in identifying consciousness with determination to act; the Epicureans by believing that “to be conscious of one’s maxim leading to happiness is virtue” and the Stoics by believing that “to be conscious of one’s virtue is happiness” (Critique of Practical Reason, 93). Both of them proposed a direct passage from concepts to action without realizing that knowledge and virtue are heterogeneous and that there can be no direct passage from one to the other. The role of judgment—and fictional judgment in particular—consists in mediating between knowing what is right or just and aspiring to act accordingly. The use of fictions as an aid to action is not thus the same as superimposing the fictional world over the real: “Thus, in analogy with the law of the equality of effect and counter-effect in the mutual attraction and repulsion of bodies, I can also conceive of the community of the members of a commonwealth in accordance with rules of justice, but I cannot transfer the specific determination of the former . . . to the latter and attribute them to the citizens in order to conceive of a system which is called state” (Kant, Critique of the Power of Judgment, 329 [5:465]). For an excellent examination of Kant’s fictional reasoning, see Pitkin, Wittgenstein and Justice, 231–40. We can apply what Kant says about our need to represent ourselves “through reason as belonging” to a world made according to God’s will, in order to make our life a project in that direction, to sovereignty. Kant, Critique of Pure Reason, 680 (A811/B839). The legitimacy of criminal justice, in Hegel’s mind, rests indeed on the inclusion of the subject within the jurisdiction of the state, an inclusion that is perceived by the criminal in the form of as if he were part of the jury that

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NOTES TO PAGES 125–128

67. 68.

69. 70.

71.

72.

73.

74.

75.

76.

268

is judging him. The criminal must be able to consider himself as if he were seated in the jury; he must feel that he is represented by the judgment of the jury as Balibar argued in We, the People of Europe? 188. Kant, The Metaphysics of Morals, 75. Gauchet has suggested a parallel between the “judge” (in the court) and “opinion” (in society) because they both instantiate a “permanent representation” of the sovereign and in neither case do they substitute for ordinary powers but “remind” them that they should stay within the parameters of the founding agreement (La r´evolution des pouvoirs, 43–46). Although this parallel is pertinent because judgment is representable and representative, it should not however be taken so far so to hide what makes judgment in politics different from judgment in the court. Rawls, “The Idea of Public Reason Revisited,” 577. “I emphasize that it is not a legal duty, for in that case it would be incompatible with freedom of speech” (Rawls, “The Idea of Public Reason Revisited,” 577). The assumption that judgment of the judge and of the citizens are somehow identical should be seen as a weakness of the theory of deliberation; see Pettit, “Deliberative Democracy,” 138–62. For an extremely useful analysis of the forms of judgment (or rhetorical reasoning), see Perelman, Justice, Law, and Argument, 59–66; on hypocrisy and publicity, see Elster, “Deliberation and Constitution Making,” 104. “The grammar of egalitarian societies seems to accentuate and predicates, evaluations by the subject, whereas the language of hierarchic societies would be evocative, its grammar and syntax would have a magic quality. . . . In an equalitarian society language belongs to everybody and evolves quite freely; in a hierarchic society it congeals. Its expressions and formulas become ritual and are listened to in a spirit of communion and total submission” (Perelman and Olbrechts-Tyteca, The New Rhetoric, 164). This was in Tocqueville’s correct opinion the main source of the difference between the American and European systems and the fact that the former gave to judges an “immense political power” as the latter did not (Democracy in America, 100–101). His lead was Montesquieu, who rested his case for power limitation by means of power (thus the need of a third power) on the assumption that the judge depends on and obeys only the law but does not depend on the same source of the law as the lawmakers: “So that one cannot abuse power, power must check power by the arrangement of things” (The Spirit of the Laws, bk. 11, chap. 4). This suggests Aristotle’s distinction between forensic and deliberative rhetoric: “the member of the general assembly is a judge of things to come; the dikast, of things past” (The Art of Rhetoric, 33–35). On the comparison between forensic and political judgment, see Ferrajoli, Diritto e Ragione, 88–93. Cf. Friedrich, Man and His Government, 310–14; Kelsen, Introduction to the Problems of Legal Theory, 55–75 (§§ 27–31).

NOTES TO PAGES 128–135

77. I agree with Thompson’s argument that Rawls’ extension of the principles of public reason to representatives is “inappropriate” because if applied consistently it would eliminate representation, which calls for special attention to one’s constituency (Thompson, Political Ethics, 113). 78. On the two models of justice—American and Continental—see Kelsen, General Theory of Law and State, 270–82. Just as with political representation, no outcome of judicial representation is “final or beyond debate”; this is not to say that juridical representation is a matter of political agency subjected to the will of the majority (Bybee, Mistaken Identity, 41–48). On political judgment in the legislature and more generally the criteria of autonomy and generality in representation, see Thompson, Political Ethics, 105–15. 79. Carr´e de Malberg, Contribution, 2:219 (footnote 16). The reference is to ´ Sieyes’ speech on the royal veto in Ecrits politiques, 235. 80. Kelsen, General Theory of Law and State, 290–91. 81. Bobbio, Teoria generale della politica, 417–21. 82. Carr´e de Malberg, Contribution, 2:166. 83. Unless, as we have seen above, the “ought” is collapsed in the “is” or the sovereign of the law is the same thing as the sovereign of the positive law. 84. Tocqueville, “Speech Pronounced,” 750–51. I am here elaborating from Bobbio, Teoria generale della politica, 420–21. 85. Kelsen, Vom Wesen und Wert der Demokratie, chap. 5. 86. Carr´e de Malberg provided the best analysis of the differences between private delegation and political representation (Contribution, 2:209–21). 87. This view questions Anne Phillips’ dualism of politics of presence/politics of ideas, which seems to presume that the “particular” and the “general” remain separate from one another. Yet both of them are essential components of the work of judgment and not substantially separable as if “particularity” were ideas-blind and “generality” facts-empty. For a critical examination of the issue of presence in the dynamic of representation, see Dovi, “Preferable Descriptive Representatives.” 88. Mansbridge, “Rethinking Representation,” 515. 89. See Kelsen, Vom Wesen und Wert der Demokratie, chap. 2. 90. Thompson, Political Ethics, 113. 91. I have analyzed the differences between representative democracy and populistic democracy in “Democracy and Populism.” 92. Bentham, An Introduction, chaps. 3, 12; Mill, Considerations on Representative Government. 93. “If two highwaymen meet a belated traveler on a dark road and propose to relieve him of his watch and wallet, it would clearly be an abuse of terms to say that in the assemblage on that lonely spot there was a public opinion in favor of a redistribution of property” (Lowell, Public Opinion and Popular Government, 4–5). It is “public” that opinion that is held by the majority and that the minority accepts while enjoying the freedom of opposing it and dissent. This acceptance can be rendered as the fact that the minority feels

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NOTES TO PAGES 135–139

it has a sort of moral and political obligation to undergo the decisions of the majority. Mill saw that what held a society based on consent together lies in the “fixed point” that citizens “agree in holding sacred” or “in common estimation placed beyond discussion” (Mill, “Coleridge,” 33–34). The best formulation of public opinion as generality but not unanimity that transcends identity-belonging but is not identical with the aggregation of majority votes either has been made by Rawls. He calls it overlapping consensus or a general agreement that can be better rendered by default: that the opinion of a mere numerical majority does not by itself always suffice to make the minority feel a moral obligation to obey (Political Liberalism, 11–15). As for Lasswell, the “open interplay of opinion and policy is the distinguishing mark of popular rule” (Democracy through Public Opinion, 15). 94. Bryce, The American Commonwealth, 2:917–18. On the power of public opinion, see Key, Public Opinion, 3–16; 535–58. 95. This is why Tocqueville thought that democracy was not a form of government but the social condition or the state of things: relation of equality as a passion, similarity of condition as a social exigency, commonalty of views, beliefs, and values. Tocqueville went so far in the disassociation of the juridical will and the informal will as to give democratic sovereignty an essentially ethical identity, regardless of the form of political institutions, and finally a despotic nature. CHAPTER FOUR

1.

2.

3. 4.

270

Scholars attribute the paternity of the term representative democracy to Hamilton, who used it in a 1777 letter to Governor Morris (Rosanvallon, Le peuple introuvable, 11, footnote 2). In France (and therefore in Europe), the term probably appeared for the first time in 1787–88 in Condorcet’s Lettres d’un bourgeois de New-Haven a` un citoyen de Virginie (now in volume 9 of his Oeuvres), even if its usage became more familiar after 1792, with the fall of the monarchy and the election of the new convention to give the country a republican constitution. In both countries, the implementation of representative democracy began at the local level—with township government in New England, and municipal government in Paris after 1789. Rosanvallon, La d´emocratie inachev´ee, 12–16. The main theorists of representative democracy, Jefferson, Paine, Brissot, and Condorcet, agreed on some basic issues: that state institutions should be organized to facilitate the coexistence of representation and participation; that the American conventions were a model of sovereignty in action or regulated sovereignty as opposed to extralegal exceptionality; and that decentralization, but not necessarily federalism, which seemed to be more an expediency to cope with a large territorial entity than a value of its own, was a condition of political liberty. Rosanvallon, La d´emocratie inachev´ee, 61. Condorcet, “Sur l’instruction publique,” in O, 7:190–95.

NOTES TO PAGES 140–144

5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

15.

16. 17. 18. 19.

20.

21. 22. 23. 24. 25. 26.

Brissot, Discours sur les conventions, 16. Sieyes, Notice sur la vie de Siey`es, in Oeuvres (hereafter cited as O), 3:48; Saint-Just, Discours sur la Constitution de la France. Cf. Forrest, “Federalism.” Pasquino, Sieyes, chap. 2; Baczko, “Le contrat social,” 494; Forsyth, Reason and Revolution, chaps. 2–3. Sieyes, Vues, in O, 1:14. Pasquino, Sieyes, 39, 99–128. Sieyes, “Opinion . . . prononc´ee a` la Convention le 2 thermidor . . .,” in O, 3:5; the text can also be found in Bastid, Les discours de Siey`es, 16. ´ Sieyes, Ecrits politiques, 32. Manin, The Principles of Representative Government, 187; Sieyes, Vues, in O, 1:91. ´ Sieyes, Ecrits politiques, 95–97. ´ Sieyes, Ecrits politiques, 62. Sieyes assimilated sovereignty and representation by grounding both of them on the individualistic conception of sovereignty; Raynaud, “La d´eclaration des droits,” 139–49. In fact, Sieyes did not invent anything in this regard since the analogy of the market and politics was commonplace in the eighteenth century, as Derath´e has explained in Jean-Jacques Rousseau, 257. In the natural law tradition, all transfers were legitimate provided they were made according to a convention (a contract) or consent. ´ Sieyes, Ecrits politiques, 30–43. ´ Sieyes, Ecrits politiques, 262. ´ Cf. respectively, Sieyes, Ecrits politiques, 62–75; Kelsen, General Theory of Law and State, 289; and Bastid, Siey`es et sa pens´ee, 370. “The two great motive forces of society are: money and honor. . . . The desire to merit public esteem, and it exists in each profession, is a necessary brake on ´ the passion for wealth” (Sieyes, Ecrits politiques, 106; see also 75). Cf. Bastid, Siey`es et sa pens´ee, 370. ´ Federalist Papers, no. 53; Sieyes, Ecrits politiques, 262. Sieyes endorsed the discontinuist view of representation and grounded it on a socioeconomical argument (see note 13 to chapter 2, above). Cf. Dorigny, “La formation de la pens´ee e´ conomique de Siey`es,” 29–32. ´ Sieyes, Ecrits politiques, 82, 63. ´ Cf. Bastid, Les discours de Siey`es, 58–59; Sieyes, Ecrits politiques, 250. Constant, “The Liberty of the Ancients,” 325. Sieyes, D´elib´erations a` prendre dans les assembl´ees de bailliages, in O, 1:69. Spitz has analyzed freedom as dependence in d’Holbach’s work in “From Civism to Civility,” 107–22. “It is indubitable that liberty is increased when one is represented in as many things as possible, while it is diminished when all the various representations accumulate in the hands of the same people. Look at the private realm and see if the freest man is not he who gets the most things done for him” ´ (Sieyes, Ecrits politiques, 62).

271

NOTES TO PAGES 144–148

27. From an unpublished note by Sieyes cited in Forsyth, Reason and Revolution, 123. ´ 28. Sieyes, Ecrits politiques, 262. ´ 29. Sieyes, Ecrits politiques, 262. ´ 30. Sieyes, Ecrits politiques, 48–62, and “Bases de l’ordre social,” in Pasquino, Sieyes, 185. ´ 31. Sieyes, Ecrits politiques, 263. ´ 32. Sieyes, Ecrits politiques, 262; Forsyth, Reason and Revolution, 147. 33. Sieyes, “Des int´erˆets de la Libert´e dans l’´etat social et dans le syst`eme repr´esentative,” in O, 3:36. ´ 34. Sieyes, Ecrits politiques, 238. 35. Montesquieu, The Spirit of the Laws, 399. 36. Montesquieu, The Spirit of the Laws, 399. 37. From an unpublished note on liberty by Sieyes excerpted by Forsyth, Reason and Revolution, 123–24. 38. There is textual evidence in Marx’s early writings that Sieyes’ identification of the third estate with the nation had galvanized Marx. Moreover, Montesquieu’s rendering of money as symbolically representative of things had caught the attention of both Sieyes and the author of Capital. Cf. Marx and Engels, Collected Works, 1:3 (for reference on Sieyes), and 35:101, footnote 2 (for reference on Montesquieu). 39. Carr´e de Malberg, Contribution, 2: chaps. 2–3 in particular. 40. Gauchet has suggested we interpret Sieyes’ model of representative government according to the “logic of substitution” of the sovereign with the representatives (La r´evolution des pouvoirs, 68). On Sieyes’ “artificialism,” see ´ also Jaume, Hobbes et l’Etat, 173–76. 41. In a footnote to the first volume of Capital, Marx referred to Locke as the author who, unlike the economic theorists who came after him, retained the (Aristotelian) distinction between the value of use and exchange-value and rendered the former with a “Teutonic word” (worth) and the latter with a “Romance word” (value). “Worth” stood for the “actual thing” or its essential value; money stood for its “Romance value” in the sense that, like Romance languages in relation to Latin, it was wholly conventional, not original (Collected Works, 35:46, footnote 1). The conventionality of money is even clearer if we refer to its Greek original term nomisma. 42. “A chaque e´ change de votre e´ cu, il y a donc eu deux valeurs, d’une cˆ ot´e la production simple, de l’autre un travail industriel de valeur e´ gale” (Sieyes, ´ Ecrits politiques, 37–38). 43. All implicit and explicit references to Marx are from Capital, in Collected Works, 35:46–48. 44. For the right to vote to operate as a means of equivalence, all violations of that “perfect simplicity”—like privileges, sex, race, etc.—must be eliminated. ´ ´ Sieyes, Ecrits politiques, 181; cf. Jaume, Hobbes et l’Etat, 190–94.

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NOTES TO PAGES 149–150

45. The role of election allows us to discriminate between the forms of representation Sieyes attributed to state institutions. According to him, the king, the lawmakers, and the public officials or state functionaries were representatives because all of them were subject to a selection process. All public functions were representative and open to all, although not performed by all. However, Sieyes did not miss the uniqueness of the representative function of lawmaking, the only one that had to be determined not by selection alone, but by electoral selection (during the Revolution, he proposed that the king too should be elected, and more or less prefigured a presidential solution similar to Hamilton’s). The quantitative unit of the vote gave elections an egalitarian character that selection alone did not have, and made it the only legitimate procedure to form the function that gave voice to the will of the nation; Sieyes, “Bases de l’ordre social,” in Pasquino, Sieyes, 185– 86. ´ 46. Sieyes, Ecrits politiques, 261. The disassociation of the elector and the citizen and the territoriality of constituencies were Sieyes’ masterpieces. He gave the most convincing and lucid answer to the question posed by Rehfeld as to why territorial constituencies are used for political representation instead of for ideological or professional reasons (Rehfeld, The Concept of Constituency, 8–40). 47. Gueniffey, Le nombre et la raison, 17; Bastid, Siey`es et sa pens´ee, 413. Sieyes was responsible for the administrative subdivision of France into departments. It should be noted, however, that Sieyes did not want representation to be a function of the population and in fact he mapped the electoral colleges according to their geographical extension, and moreover introduced parameters of diversification of representation, which along with the population density and taxation were supposed to guarantee a sociological faithfulness of the national assembly (Forsyth, Reason and Revolution, 152–53). Whatever the contingent reasons of the hypothetical electoral scheme he devised in 1790, Sieyes theorized an absolutely equal voting power among the citizens, whose “influence cannot be but in reason of the number of heads that have ´ the right to be represented” (Ecrits politiques, 167). ´ 48. Sieyes, Ecrits politiques, 260. 49. “Mais ici les d´eput´es d’un district ne sont pas seulement les repr´esentants du bailliage qui les a nomm´es, ils sont encore appel´es a` repr´esenter la g´en´eralit´e des citoyens, a` voter pour tout le royaume. It faut donc une r`egle commune et des conditions . . . qui puissant rassurer la totalit´e de la nation contre le ´ caprice de quelques e´ lecteurs”; Sieyes, Ecrits politiques, 134. 50. Marx, Capital, in Collected Works, 35:305. ´ 51. Sieyes, Ecrits politiques, 199. For an interesting analysis on “passive” and “active” citizenship in Sieyes’ writings, see Sewell, “Le citoyen/la citoyenne,” 105–13. ´ 52. Sieyes, Ecrits politiques, 160.

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NOTES TO PAGES 150–154

53. “The nation is the ensemble of associates, all governed, all subjected to the law, the work of their will, all equal in their rights, and free in their commu´ nication, and reciprocal engagements” (Sieyes, Ecrits politiques, 198). 54. See Carr´e de Malberg, Contribution, 2:207–9; Sartori, Elementi di teoria politica, 287–93. The distinction between people and nation in Sieyes is stressed by Pasquino, who focuses his reading on the contrast between Locke and Rousseau (Sieyes, chap. 5). 55. Bastid, Siey`es et sa pens´ee, 575. 56. On the principle of competence in deciding on the inclusiveness of the demos as something that cannot be entirely transcended, see Dahl, “Procedural Democracy,” 108–33. 57. Baker, “Sieyes,” 321. 58. “The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves”; Federalist 75. As Ackerman has perspicaciously noticed, “political representation not only promises a solution to the ancient problem of democracy but provides the source of an entirely new problem—misplaced concreteness or reification” (“Neo-federalism?” 167). ´ 59. Sieyes, Ecrits politiques, 160. Baczko has defined him as the “inventor” of “modern democracy” (“Le contrat social des franc¸ais,” 494); Baker has argued that he “divorced the idea of a unitary general will from the communal dream of direct democracy and reconciled it with the practice of representation” (Inventing the French Revolution, 250). ´ 60. Sieyes, Ecrits politiques, 162. ´ 61. Sieyes, Ecrits politiques, 196–97. Sieyes’ answer to the “monstrosity” of “unlimited powers” was a limited (in accumulation) and minimal state (in tasks). The philosophy of the division of labor allowed him to endorse Montesquieu’s maxim of “moderate government” without resorting to Montesquieu’s doctrine and strategy of the separation of powers. See Pasquino, who draws (in Sieyes, 150) a parallel between Sieyes’ and the Federalists on the constitutional model. 62. Individual, coordinated wills (freedom of choice within the division of labor) required subjects who could limit their will—each man “has the innate right to deliberate and will for himself, to oblige himself, to make contracts with others, and consequently to impose laws on himself”; Sieyes, Vues in O, 1:14. 63. Baker, “Constitution,” 489. ´ 64. Sieyes, Ecrits politiques,161. ´ 65. Sieyes, Ecrits politiques, 159. ´ 66. Sieyes, Ecrits politiques, 178. An interesting analysis of Sieyes’ theory of delegation in relation to Hobbes’ and Schmitt’s conception of the founding of the state can be found in Kelly, “Carl Schmitt’s Political Theory of Representation,” 113–34. 67. Carr´e de Malberg, Contribution, 2:170. This is why Sieyes has been seen as the initiator of a state-based sovereignty, and the co-creator, along with

274

NOTES TO PAGES 154–160

68. 69.

70. 71. 72. 73. 74. 75. 76.

77. 78. 79.

80. 81. 82.

83.

the American founding fathers, of a liberal constitutionalism that eroded sovereignty, rather than as the initiator of modern democracy. See, res´ pectively, Jaume, Echec au lib´eralisme, 33–36; Pasquino, Sieyes, 75. For an excellent historicopolitical analysis of the creation of “modern national citizenship” during the French Revolution (and electoral representation as part of it), see Brubaker, Citizenship and Nationhood, ch. 2. Brissot, M´emoires, 3:137–38. On Brissot’s critique of Sieyes, see, Mazzanti Pepe, Il nuovo mondo di Brissot, 253–56. Sieyes used language that was similar to Hobbes, who saw representation as procuration (Pitkin, The Concept of Representation, 18–22). “The will cannot be represented, says he [Rousseau]. Why not? It is not a question here of the whole will of the men, and there are numerous examples of private people and of powers that treat of this or that matter by way of procuration” (Sieyes, “Bases de l’ordre social,” in Pasquino, Sieyes, 185). Kelsen, General Theory of Law and State, 291. See also Bastid, Siey`es et sa pens´ee, 575–77. ´ Sieyes, Ecrits politiques, 159. Carr´e de Malberg, Contribution, 2:208–9. This was the position he took, consistently with his own premises, against the suspended vetoes in 1789. Bastid, Siey`es et sa pens´ee, 581. Elster, Introduction to Deliberative Democracy, 13. Friedrich called imperative mandate a “pious formula . . . repeated in so many European constitutions” and yet so imprecise if extended beyond the formality of the norm (Constitutional Government, 309). Gueniffey, Le nombre et la raison, 129. ´ Sieyes, Ecrits politiques, 178. Tocqueville understood this very well, and was perhaps the first theorist who started evaluating institutions in relation to the normative context in which they operated. Palonen, “Parliamentarism,” 114. Brissot, Plan de conduite, 261–62. Condorcet, Lettres d’un bourgeois de New-Haven, in O, 9:86–87. Although Sieyes understood that the existence of a dialectics between two parties was essential to the good functioning of the representative assembly (Sieyes, “Opinion . . . prononc´ee a` la Convention le 2 thermidor . . .,” in O, 3:20). Gueniffey, Le nombre et la raison, 30. This theory of representation, which has dominated the literature on representative government during the last two centuries, is naturally tailored to a uninominal and first-past-the-post electoral system. Incidentally, it is clear that it is radically inhospitable to proportional representation because the citizens are unified in and by the person of the notabile just as the subjects were unified in the person of the king. They are unified by the work of the competent few to whom they give

275

NOTES TO PAGES 160–162

84.

85. 86.

87.

88.

89.

90.

their confidence. The political passivity of the many and the active protagonist of the few are the interdependent functions of the unifying work done by representation Cf. Eidelberg, The Philosophy of the American Constitution, 24–25. Republicanism transcended the theory of forms of government and for several centuries was “a form of life” that could also exist in a monarchy. Venturi, Utopia and Reform, 62–71. Cf. Wood, The Radicalism of the American Revolution, 28, 32–39, 87. The representative was a local notable and in his person the whole community was unified. This kind of patronage made politics a question of “perception of the special personal character of the vertical bonds that tied people together” (Wood, The Radicalism of the American Revolution, 78). Atimia or infamia were—just as in the ancient republics—methods of disfranchisement practiced in the American colonies, the United States, and in France (Pettus, Felony Disenfranchisement, 15–36). Sieyes paid close attention to the making of the “listes des notabilit´e” and considered ostracism as a punishment for dishonor. Before the repressive purges of electoral lists under Napoleon, ostracism was a form of judgment performed in the primary electoral assemblies whereby the community of electors chose the candidates on the basis of social, professional, and ethical principles. Cf. Bastid, Siey`es et sa pens´ee, 408–16. “The personal structure of eighteenth-century politics, the prevalence of numerous vertical lines of influence converging on particular people of wealth and power. . . . This . . . explains the absence of organized parties in the eighteenth century. Political factions existed, but were little more than congeries of the leading gentry’s personal and family interests” (Wood, The Radicalism of the American Revolution, 87). Federalist 10; 53; 57. On the modern as commercial transformation of the ancient language of republican virtues, see also Baker, “Transformations of Classical Republicanism,” 35–36. ´ Sieyes, Ecrits politiques, 233–34.

CHAPTER FIVE

1.

276

Bastid, Siey`es et sa pens´ee, 133. The other members were Brissot (then replaced by Barbaroux), Petion, Vergniaud, Gensonn´e, Bar`ere, and Danton. The latter two were considered as Montagnards, while both the Girondins and the Montagnards claimed Condorcet as their ally. But after Condorcet submitted the Plan of Constitution, on February 18, 1793, the Jacobins stopped seeing him as a friend; disappointed with the work of the Girondin committee, they formed their own parallel committee with Robespierre and Saint-Just as leaders to draft an anti-Girondin constitution (Alengry, Condorcet, 189–92; Aulard, Histoire politique, 280–82). As for Sieyes’ low profile in the committee, according to Brissot it was consistent with his talent of adopting the strat-

NOTES TO PAGES 162–164

2.

3.

4. 5.

6.

7.

8. 9. 10. 11. 12. 13.

egy of silence when political tensions were too high and risky (M´emoires, 3: 132). Cf. the speeches delivered in the Assembly by Robespierre on April 19, 1793, and by Saint-Just on April 24, 1793 (Archives parlementaires 62:793; 63:204). The former claimed that the Girondin’s proposal of constitution favored “le germe du royalisme et du f´ed´eralisme” and the latter that it devised “une repr´esentation f´ed´erative” that would destroy the general will. Bastid spoke of a “break” (rupture) between the Girondins (who preferred Condorcet to Sieyes as leader of the committee) and Sieyes, who kept a low profile and was in charge thus of writing the new plan of public instruction (Bastid, Siey`es et sa pens´ee, 139). In the 1792–93 Constitutional Committee, “les amis du peuple” or the most radical were actually Condorcet himself along with Bar`ere and Danton. Sieyes, “Opinion sur plusieurs,” in O, 3:5. For an excellent comparison between Sieyes’ view of government and Condorcet’s plan, see Bastid, Siey`es et sa pens´ee, 140–41. Alengry, Condorcet, 194–95. ´ Sieyes, Ecrits politiques, 234, 236–38. As evidence (positive) of the correlation between democracy and federation one may mention “James Wilson’s Opening Address” in the Pennsylvania Ratifying Convention (Bailyn, The Debate on the Constitution, 2:793–810). Saint-Just declared in his speech of April 24, 1793: “Here is his [Condorcet’s] plan: a federalist representative [assembly] that makes laws and a representative council that executes them. A general representative [assembly] made of particular representatives of each department is no longer a representative [assembly] but a congress” (Archives parlementaires, 63:204–6; the speech can also be found in Saint-Just, Th´eorie politique, 190). The same attack was made against Brissot, who closed his M´emoires (4:403–24) with a peroration against those who accused his reference to the American model of constitutional convention and primary assemblies of endorsing federalism. On the use of the political threat of federalism by the Jacobins against the Girondins and the leaders of French municipalities outside Paris, see Forrest, “Federalism,” 309–27. ´ Sieyes, Ecrits politiques, 236, 238. Jaume, Le discours jacobin, 296. ´ Sieyes, Ecrits politiques, 198. Sieyes, “Opinion sur plusieurs,” in O, 3:5. Federalist 63, which is more or less a rehearsing of Montesquieu’s and Machiavelli’s idea on the link between large territory and liberty. ´ Sieyes, “Bases de l’ordre social,” in Pasquino, Sieyes, 184; Sieyes, Ecrits politiques, 198. Since the early phase of the Revolution, Sieyes’ concern had been to redistrict France into new territorial subdivisions comprising electoral districts that substituted for the old parliaments or “governments, dioceses, ´ bailiwicks, and generalities” that “claim to have priority” (Ecrits politiques, 247).

277

NOTES TO PAGES 165–171

14. Condorcet, “Projet de constitution franc¸aise,” in O, 12:423, and in particular 560. 15. Condorcet, “Exposition des principles et des motifs du plan de constitution,” in O, 12:347. 16. Aulard, Histoire politique, 286. 17. Sieyes, “Bases de l’ordre social,” in Pasquino, Sieyes, 184–85. ´ 18. Sieyes, Ecrits politiques, 254, and “Bases de l’ordre social,” in Pasquino, Sieyes, 184. Cf. Forsyth, Reason and Revolution, chap. 8. 19. Sieyes, “Opinion sur plusieurs,” in O, 3:5. 20. From an unpublished note by Sieyes excerpted in Forsyth, Reason and Revolution, 126. 21. Alengry, Condorcet, 197. 22. To paraphrase De Ruggiero, the political trajectory from Sieyes to Paine and Condorcet mirrored the three revolutions France went through: a revolution sensu stricto liberal, a democratic revolution, and a social revolution (The History of European Liberalism, 72–73). On Sieyes’ proposal of linking eligibility for the National Assembly to taxation (the value of a marc of silver), see Aulard, Histoire politique, 73–75; Kates, The Cercle Sociale, 44–45; and Gueniffey, “Cordeliers and Girondins,” 86–106. 23. I will discuss this aspect in the final section of this chapter. Kates has proposed a useful reconstruction and excellent analysis of the Paine-Sieyes’ polemic (“From Liberalism to Radicalism”). Cf. also Aldridge, “Condorcet et Paine.” 24. Paine, The Rights of Man, 78, 180–81. 25. “The putting any individual as a figure for a nation is improper.” This is why the oath of allegiance was improper unless taken “to the nation only,” but it “ought not to be obfuscated by being figuratively taken to, or in the name of, any person” (Paine, The Rights of Man, 191). 26. Paine, “To the Authors of ‘The Republican,’” 376–77; The Rights of Man, 168, 174. 27. Kant, The Metaphysics of Morals, 148 (§ 52). 28. On the transition, beginning in 1792, from a model inspired by a monarchical sovereignty to one inspired by an acephalous sovereignty, see the excellent monographs by De Francesco, Il governo senza testa, and Viola, Il trono vuoto. 29. Paine’s description of democracy was close to James Wilson’s, which called it a “species” of government in which the “supreme power” is “inherent in the people, and is either exercised by themselves or by their representatives” (Bailyn, The Debate on the Constitution, 1:802). 30. Paine, The Rights of Man, 167–68. 31. Montesquieu, The Spirit of the Laws, bk. 11, chap. 6. 32. Here is a curious comment on Sieyes’ attempt to mediate between monarchists and republicans, by Paine’s first biographer: “. . . he had a superstitious faith in individual executive, which, as an opportunist, he proposed to vest

278

NOTES TO PAGES 171–176

33. 34.

35. 36. 37. 38. 39. 40. 41.

42.

43. 44. 45. 46.

in the reigning house. This class of ‘revival’ in the constitution were the work of Siey`es, who was the brain of the Jacobins, now led by Robespierre, and with him ignoring republicanism” (Conway, The Life of Thomas Paine, 127). Sieyes, “Vari´et´es” (Le Moniteur, July 6, 1791), in O, 2 (doc. no. 29). Sieyes, “Pour ma dispute avec Payne” in Des manuscrits, 445. “Thus, monarchy . . . is established in order to preserve a kind of equality that cannot be obtained in the republics; it is a true limit on inequality because it tells you that no matter how high the social position you have reached, you will always have the interest of society above you. There is but one legal inequality, that of all over each; this is represented by the person of the prince. It is not the superiority of the magistrate, but a true personal inequality, the only one. ‘We want a prince in order to avoid the risk and evil of having a master,’” repeated Sieyes with Rousseau (Des manuscrits, 421). Cf. Pasquino, Sieyes, 109. Sieyes’ answer to Paine’s letter of July 8, 1791, is in O, 2 (doc. no. 30). Paine, The Rights of Man, 167. Paine, The Rights of Man, 170. ´ See Sieyes, Ecrits politiques, 263. Paine, The Rights of Man, 167. Paine, The Rights of Man, 170. Reasoning from the same premises, Fisher Ames had argued a few years before that it was incorrect to think of representation in terms of a “copy” or even an “image” because the representatives did not “reflect” the opinions of the delegates as if they were a mirror. “The representation of the people is something more than the people” because it puts into motion something that does not exist. It is the filtering work of social interests thanks to which nobody votes “for their own indemnity” or decides “by surprise” or the opinion of the moment (Bailyn, The Debate on the Constitution, 1:892). Paine’s position resembles closely that of Spinoza, Political Treatise, 351. Paine certainly knew Spinoza’s works, which in the eighteenth century were the texts of the religious skeptics, and shared with Spinoza the libertine culture which made both of them a target of religion intolerance and persecution. Paine cited Spinoza’s biblical hermeneutics in The Age of Reason, 767. Paine, “To the Authors of ‘The Republican,’” 377. Paine, The Rights of Man, 168–70. Paine, The Rights of Man, 170. Paine, The Rights of Man, 171–72.

CHAPTER SIX

1.

´ See, respectively, Sieyes, Ecrits politiques, 236, and Rosanvallon, Le peuple introuvable, 49. Representative government is mixed-regime m´elange of “ce qu’il y a de bon dans la d´emocratie, dans l’aristocratie, et dans la monarchie” (Sieyes, “Bases de l’ordres social,” in Pasquino, Sieyes, 186).

279

NOTES TO PAGES 177–179

2. 3. 4.

Gueniffey, Le nombre et la raison, 149. Condorcet, Sur les e´ lections, 131. Condorcet’s Rapport et projet de d´ecret sur l’organisation g´en´erale de l’instruction publique, in O, 7:462–63. 5. Condorcet, “Projet de constitution franc¸aise,” in O, 12:469. 6. “Ce projet est le dernier mot du syst`eme social girondin” (Buchez and Roux, Histoire parlementaire de la R´evolution franc¸aise, 24:101). Although Condorcet was not a party man, Brissot’s party backed his plan when the two wings of the Convention split and the Montagnard’s hostility to Condorcet’s plan became radical (Badinter, “Condorcet et les Girondins,” 351–66). On the independence of Condorcet from political parties, and particularly the Girondins, see Dorigny, “Condorcet, lib´eral et girondin,” 333–40. On Condorcet’s authorship of the plan, see Alengry, Condorcet, 189–93, and Galy, La notion de constitution, 167–68. 7. For an excellent depiction of the political environment within which the Convention was elected and the constitution written and discussed, see Badinter and Badinter, Condorcet, 483–540. On the collaboration between Condorcet and Sieyes in the common project of advancing the political culture of indirect government, see Guilhaumou, “Condorcet-Siey`es,” 223–34. 8. On the political ideas and the fate of his constitutional plan, the most informative and complete work is that of Alengry, Condorcet (in particular bk. 1, chaps. 6–7), and Magrin, Condorcet, 204–35. 9. From an unpublished comment by Adams about Condorcet’s Lettres d’un bourgeois de New-Haven dated 1788 and cited from Huggins, “John Adams et ses r´eflexions sur Condorcet,” 211. Condorcet’s Lettres were a defense of his mentor Turgot, who in a letter to Richard Price (published in London in 1784) had criticized the American constitution because of bicameralism and the endorsement of Montesquieu’s equilibrium model. Against Turgot, Adams wrote three volumes (the first published in 1787) of A Defence of the Constitutions of Government of the United States of America. Adams’ work came out after Turgot’s death, and Condorcet felt it was his duty to answer to the American critic on behalf of his mentor. But the knowledge and discussion of the American constitutions—in particular that of Pennsylvania—was crucial in the formation of the constitutional culture of the leaders of French reformism (Shapiro, Condorcet and the Rise of Liberalism, 227; Haraszti, “John Adams on Condorcet,” 473–99). 10. For a reconstruction of the place of Condorcet in post–World War II political historiography, liberal and radical, see Magrin, Condorcet, 7–28; Pertu´e, “La censure du peuple,” 329; Pasquino, Sieyes, chap. 2; and Jaume, Le discours jacobin, 223–24. 11. The most interesting text in this regard is Grofman and Feld, “Rousseau’s General Will,” 567–76. 12. See, respectively, Arrow, Social Choice and Individual Values, 94–95; McLean, Introduction to Condorcet, Foundations of Social Choice, 32–48. For a recent

280

NOTES TO PAGES 179–183

13.

14.

15.

16. 17.

18.

19. 20. 21.

22. 23. 24.

critical appraisal of Condorcet’s rationalism and cosmopolitanism, see Kymlicka, Politics in the Vernacular, chap. 10. For a sketch of the familiar image of Condorcet as “the embodiment of the cold, oppressive enlightenment,” see Rothschild, Economic Sentiments, chap. 7. Michels, Political Parties, 112; Schmitt situated him between Kant’s “belief in the progress of publicity” and Bentham’s “fanaticism” in “liberal rationality” (Schmitt, The Crisis of Parliamentary Democracy, 38). “Is there any sense in studying the proposals of a leader who lost?” McLean seems to be asking when he compares the winner Madison and the loser Condorcet (Introduction to Condorcet, Foundations of Social Choice, 73–74;) but see above all Baker, Condorcet, 383–86, and “Condorcet,” 209. Robespierre commented that Condorcet’s primary assemblies were so pervasive that they would cause the citizens to be disgusted with participation and the French to be brought to “famine, because it [the plan] does not even dream of an indemnity for the time that the people devote to public business instead of subsidizing their families” (cited in De Montfort, Les id´ees de Condorcet sur le suffrage, 205). My reading is informed by seminal works published in the last decade or so by Jaume, Magrin, and Rosanvallon, which I shall hereafter cite. Condorcet, “Plan de Constitution, pr´esent´e a` la Convention Nationale les 15 et 16 F´evrier 1793,” in O, 12:335. The plan is composed of an “Exposition des principes et des motifs du plan de constitution,” of the “Projet de D´eclaration des droits naturels, civils et politiques des hommes,” and of the “Projet de constitution franc¸aise.” The English translation of the “Exposition” (“A Survey . . .”) and some parts of the two “Projets” is in McLean and Hewitt, Condorcet, Foundations of Social Choice, 190–222. Hereafter I shall cite both the French and the English texts and omit reference to volume 12 of Condorcet’s Oeuvres. Jaume, Le discours jacobin, 225–29; Magrin, Condorcet, 12–13; Rosanvallon, La d´emocratie inachev´ee, 52–66. A useful multifaceted analysis of the French debate on democracy and representation in Condorcet’s times is Bourderon, L’An I et l’apprentissage de la d´emocratie. Cf. Swenson, On Jean-Jacques Rousseau, 61–62. Condorcet, “Projet de constitution,” title VIII, art. 1. Condorcet, “Instruction sur l’existence du droit de souverainet´e” (9 August 1792), in O, 12:535. “On a voulu que le corps l´egislative ne fˆ ut proprement charg´e que de la discussion, de la composition, de la r´edaction des lois; que la totalit´e du people d´ecidˆat toujours sur ce qui est conforme ou contraire a` ses droits” (Condorcet, Lettres d’un bourgeois de New-Haven, in O, 9: 58). Condorcet, Lettres d’un bourgeois de New-Haven, in O, 9:66–67. Condorcet, Lettres d’un bourgeois de New-Haven, in O, 9:84. Condorcet, “Aux amis de la libert´e,” in O, 10:179. On the Athenian attachment to innovation, its aversion to professional jurists and legalistic culture,

281

NOTES TO PAGES 183–185

25. 26.

27.

28. 29.

30. 31.

32.

33.

34. 35.

282

and finally on the problems coming from its inability to reconcile innovation and stability, see Schwartzberg, “Athenian Democracy.” For a contemporary version of legal institutionalization of democratic change, see Habermas, Between Facts and Norms, 168–86. Condorcet, “Sur la n´ecessit´e de faire ratifier la constitution par les citoyens” (1789), in O, 9:427–28; “Aux amis de la libert´e,” in O, 10:178–79; and “Projet de D´eclaration de Droits” (art. 28). “In reality, without some fixed laws, we can have neither legality nor liberty nor public prosperity.” Condorcet, “Sur la n´ecessit´e d’´etablir en France une constitution nouvelle” (March 1793), in O, 12:353. Cf. Bates, Enlightenment Aberrations, 77–90. Condorcet, “De la nature des pouvoirs politiques dans une nation libre” (November 1792), in O, 10:610. The “legal means” of convocation, deliberation, and voting made the people into the sovereign and transformed their “r´eclamations partielles et spontan´ees” into a source of legitimate authority. Condorcet, “Exposition,” 349; “A Survey,” 196. Condorcet, “De la nature des pouvoirs politiques . . . ,” in O, 10:590– 91. Condorcet, Essai sur la constitution et les fonctions des assembl´ees provinciales (1788), in O, 8:580 (also in Condorcet, Foundations of Social Choice, 157). I borrow this Latin expression from Arendt, On Revolution, 255. For a useful overview of the debate on the relationship between power and legitimacy in constitution making, see Kalyvas, “Sovereignty, Democracy, and the Constituent Power.” Schmitt, The Crisis of Parliamentary Democracy, 44. “Condorcet is the typical representative of enlightenment radicalism, for whom everything concrete is only a case for the application of a general law. Every activity, the whole life of the state, . . . exhausts itself in law and the application of law” (44). Schmitt discussed his political views on the occasion of the debate over the Weimar constitution to defend a nondeliberative and authoritarian form of delegated democracy. In his search for the founders of the view of democracy as “public debate and public discussion,” he came across the author of the Girondin constitution and recognized him as the founder of representative democracy (34). Condorcet, “Exposition,” 410–11; 340–41; “A Survey,” 225 and 192–93. Condorcet’s call for laws made in conformity to justice should be interpreted as a call for submitting the act of reasoning to a scheme of judgment that is based on political and moral freedom (“not being dependent”) and that justified the right to constitutional renewal. Swenson, On Jean-Jacques Rousseau, 60. This was the important difference between Condorcet and Kant, because while the latter ended his analysis of knowledge with the formalism of the a priori, the former was a sensationalist and thought that “it is always

NOTES TO PAGES 185–190

36. 37. 38. 39.

40. 41. 42.

43.

44. 45. 46. 47.

48.

49.

necessary to pass through a minimum of knowledge; truth is not a pure form” (Kintzler, Condorcet, 46). Condorcet, Essai sur la constitution et les fonctions des assembl´ees provinciales (1788), in O, 8:497. Condorcet,“Sur le sens du mot R´evolutionnaire” (June 1, 1793), in O, 12:623. Condorcet, Lettres a` M. le Comte Mathieu de Montmorency (1789), in O, 9:375. The citation is from an unpublished fragment by Condorcet quoted in Coutel, “Utopie et perfectibilit´e,” 99–107; another “Fragment sur l’Atlantide” is published in O, 6:597–660. Condorcet, Lettres a` M. le Comte Mathieu de Montmorency, in O, 9:375, 371. Condorcet, “Sur la n´ecessit´e de faire ratifier la constitution . . . ,” in O, 9:416. “We also needed to warn the people against the dangers of profound indifference which often follows revolutions, against the effects of the slow and secret abuses which eventually corrupt human institutions. . . . We therefore felt it necessary to establish within the constitution a means of reform which was independent of the people’s request and which would therefore take place at fixed intervals” (Condorcet, “Exposition,” 407; “A Survey,” 223). “Respect for the law, a necessary condition in a free nation, is not a stupid enthusiasm for established laws, a political superstition . . . it is the intimate conviction that it is important that the law subsists and is executed; it is the sentiment that inspired Socrates” (Condorcet, “Aux amis de la libert´e,” in O, 10:180). See Alengry, Condorcet, in particular bk. 2; and Baker, Condorcet, 202–25. Condorcet, “Id´ees sur le despotisme,” in O, 9:161. Condorcet, “Id´ees sur le despotisme,” in O, 9:150–52. See the magisterial defense of representation as a prerogative of the people against the king in Sidney, Discourses Concerning Government (§§ 31–33, 37–38, 44), and compare it with Hobbes’ theory of representation as the institutionalization of the purely artificial person of the state. Hobbes’ concept of political covenant upon which his idea of representation rested was not meant to institute a limited power but to create a power that had no limits (Skinner, “Hobbes and the Purely Artificial Person of the State,” 201–8). For an effective analysis of the “enigma of representation” in the Anglo-Saxon world, see Morgan, Inventing the People, in particular chap. 2. Elster proposes a “three-stage sequence” from absolutism to checks and balances strategies depending on who was the sovereign (although he does not use the word “sovereign”): from the king to the parliament to the court (“Limiting Majority Rule,” 4). In his analysis, Elster does not contemplate the case of a checking strategy based on the citizens’ right of revocation. Condorcet’s case suggests we cast some doubt on Elster’s view according to which French constituents “never faced up to the problem of interpretation.” The fact that they did not resort to the mechanism of “letting the judiciary decide on the constitutionality of laws” (“Limiting Majority Rule,” 8) does not however imply that they were not aware that the

283

NOTES TO PAGES 190–192

50. 51. 52. 53. 54.

55.

56.

57.

58.

59.

284

constitution alone could not guarantee the constitutionality of laws, and that conflicts over interpretation of the constitution could occur. While Sieyes seems to meet Elster’s diagnoses, this seems not to be the case with Condorcet. Condorcet, “De la nature des pouvoirs politiques,” in O, 10:591. Condorcet, Observations sur le XXIX`eme livre de “L’Esprit des lois” (1781), in O, 1:365 and 367. Shackleton, Montesquieu, 252. Montesquieu, The Spirit of the Laws, bk. 1, chap.1; his approach convinced Althusser to make him the ancestor of scientific materialism (Montesquieu, 32). Shackleton, Montesquieu, 251. The “spirit” of the laws was the immanent principle arising from the structure of things, the reason for their duration: “I do not treat laws but the spirit of the laws, and as this spirit consists in the various relations that laws may have with various things” (Montesquieu, The Spirit of the Laws, bk. 1, chap. 3). This interpretation has not received unanimous approval. Richter argues for instance that while he “relied upon the natural law as a standard,” Montesquieu was not such a relativist as he has been described since “he often condemned laws, practices, and institutions as violations of human nature and the natural law” (The Political Theory of Montesquieu, 20). On the other hand, precisely because of his antinormativist approach, Manent opposed Montesquieu’s realistic liberalism against the legitimacy-oriented Lockean liberalism (An Intellectual History of Liberalism, 55). The first time Condorcet used the word “constitution” in an innovative and democratic way, not simply as a method to put state powers in equilibrium but as a system that presides over the creation of the legal order, was in the Lettres d’un bourgeois de New-Haven (in O, 9), where he also first used the expression “representative democracy.” Hence, Grofman and Feld have compared Condorcet’s individual cooperative independence with Rawls’ idea that searching for the common good presumes a minimal commonalty of thinking perspectives and a basic sentiment of justice (“Democratic Theory and the Public Interest,” 1330). On the basic moral and political conditions of deliberation, see Gutmann and Thompson, Democracy and Disagreement, chaps. 1–4. Condorcet, “Journal d’instruction sociale: Prospectus” (1793), in O, 12:613. He identified four causes of “false decisions”: interest (personal or corporate), corruption, passions, and error (Lettres d’un bourgeois de New-Haven, in O, 9:5– 6). On this same basis, Aristotle introduced the distinction between what today we call constitutional laws and ordinary laws, with the understanding that collective decision-making demands reference to general principles that are open “as little as possible to the discretion of the judge’s rules” (The Art of Rhetoric, 5–6). On the role of Beccaria in the evolution of the theory of punishment as part of the theory of right and the rule of law in Condorcet’s thought, see Baker,

NOTES TO PAGES 192–194

60. 61. 62.

63. 64.

65.

66. 67. 68. 69.

70. 71. 72.

73.

Condorcet, 230–33; Magrin, Condorcet, 56–59; and Chouillet, “Condorcet et la presse,” 397–406. Beccaria, On Crimes and Punishments, 11. Condorcet, Lettres d’un bourgeois de New-Haven, in O, 9:4–8. Condorcet’s scanty knowledge of the Athenian system prevented him from using it as evidence for his theory, although in its institutional maturity Athenian democracy was a well-regulated system of popular deliberation. Condorcet, Sur les e´ lections, 21–29; Beccaria, On Crimes and Punishments, chap. XXXI. The logic is similar to the one adopted by the Plateans and the Athenians when they made their plan to resist the siege of the Peloponnesians and the Boeotians. Their scheme of defense was based on the majority principle and sought an outcome that was true: the exact calculation of the layers of bricks of the enemy’s wall. “The layers were counted by a lot of people at the same time, and though some were likely to get the figure wrong, the majority would get it right, especially as they counted the layers frequently and were not so far away from the wall. . . . Thus, guessing what the thickness of a single brick was, they calculated how long their ladders would have to be” (Thucydides, The Peloponnesian War, 204). “Jury decisions, like those by political suffrage, have to be of the same nature: right and conform to reason” (Rosanvallon, Le sacre du citoyen, 175– 76). Condorcet, “Exposition,” 354; “A Survey,” 199. Condorcet, Rapport . . . de l’instruction publique, in O, 7:234–36. Condorcet, Lettres d’un bourgeois de New-Haven, in O, 9:8. Condorcet, Lettres d’un bourgeois de New-Haven, in O, 9:76; see on this issue Kintzler, Condorcet, 17–22. On the eighteenth-century legalistic evolution of the theory of natural rights and the role of the physiocrats, see Habermas, Theory and Practice, 83–84 Condorcet, “Examen sur cette question: Est-il utile de diviser une assembl´ee nationale en plusieurs chambres?” (1789), in O, 9:334–35. Rosanvallon, La d´emocratie inachev´ee, 61. The letter has been published as an annex to the article by Guilhaumou, “Condorcet-Siey`es: Une amiti´e intellectuelle,” 235–39. Condorcet wrote three articles that were implicitly related to the Sieyes-Paine debate, both of which were published in “Le R´epublicain”: “De la R´epublique, ou le Roi est-il n´ecessaire a` la conservation de la R´epublique?” “Lettres d’un jeune m´ecanicien aux auteurs du R´epublicain,” and “Sur l’instruction d’un conseil e´ lectif,” now in volume 12 of Condorcet’s Oeuvres. Not by chance, Schmitt detected the existence of two visions within the representative family itself: strong executive versus strong legislative. The former was at the core of American presidentialism and Sieyes’ monoarchy, the latter at the core of the “deliberative and representative model of politics” (Schmitt, The Crisis of Parliamentary Democracy, 45).

285

NOTES TO PAGES 194–196

74. Condorcet, “Exposition,” 369; “A Survey,” 206. Aristotle used the argument that more minds can deliberate better than one to justify his attribution of the legislative power to the assembly of the citizens (The Politics, 108). 75. Condorcet, “Projet de constitution,” 446–52; “Exposition,” 370; “A Survey,” 206. Cf. Schmitt, The Crisis of Parliamentary Democracy, 45–46. 76. The executive was to be made of seven members plus a secretary, with the presidency rotating among all the ministers; its functions are regulated in title V of his “Projet de constitution.” The Montagnard constitution that was voted in the place of Condorcet’s foresaw a similar institution. However, in the course of the debate, the National Jury was dropped and the legislative assembly was given the absolute power to check over and judge the members of the government. This decision instituted the despotism of the assembly. In Condorcet’s plan, the National Jury was organized in a way that “the public functionaries [under accusation] were judged promptly and with impartiality” by a jury-like institution, not the legislative body. Condorcet, “Aux citoyens franc¸ais sur la nouvelle constitution” (June 1793), in O, 12:665. 77. For a comparison between Condorcet’s and Madison’s strategy of division see McLean, Introduction to Condorcet, Foundations of Social Choice, 64–69. McLean points to the fact that American constitutionalists, and Madison in particular, had the chance to know Condorcet’s pre-Revolution work, and certainly his Lettres d’un bourgeois de New-Haven, which partook in the polemic between Turgot and Adams as we have seen. McLean doubts, however, that Madison read Condorcet’s work. 78. Some interpreters have judged Condorcet’s legi-centrism as evidence of the rationalist dream of a perfect legislation that he shared with the physiocrats and the intellectuals of his century and country. Others have detected the premonition of totalitarian democracy, or at least a liberal deficit, in the “constructivist” character he assigned to the constitution (see, respectively, Cahen, Condorcet, 25–26; Baker, Condorcet, chap. 4; Weulersse, La physiocratie, 181–230). Berlin established a connection between the final solution and the utopia of perfect legislation and to make his case mentioned Condorcet’s sincere and honest desire to create the condition for just laws (“Two Concepts of Liberty,” 167 and n. 1). But see also Bastid, Le gouvernement d’assembl´ee, 13; Troper, La s´eparation des pouvoirs, 179. 79. This is why he criticized Sieyes’ early idea of making the same assembly discuss all proposals three times. Reiteration in itself was not a checking device; time delay had to be combined with the reconfiguration of the size of the gatherings (Condorcet, “Examen sur cette question,” in O, 9:344–46). On Condorcet’s cautious calculation of the ideal size of an assembly, see Estlund, Waldron, and Grofman, “Democratic Theory and the Public Interest,” 1324. 80. In his exposition of the constitutional plan he submitted to the assembly for discussion three methods of constraining the power of a mono-assembly system, all based on time delay or constraint over urgency and assembly subcommittees (Condorcet, “Exposition,” 361–64; “A Survey,” 202–3). The

286

NOTES TO PAGES 196–200

81. 82.

83.

84.

85. 86.

87. 88. 89.

90.

91.

92. 93.

first and most scrupulous elaboration of rules of discussion and voting in an elected assembly was produced by Jefferson in 1801 with the title “A Manual of Parliamentary Practice.” Condorcet, “Exposition,” 364; “A Survey,” 203. Although Condorcet did not indulge in the myth of the ancients and knew relatively little about Athenian democracy, it is now common knowledge that the Athenian assembly had procedures to check majority decisions. One of those was the form of balloting. Ordinarily, the Athenians voted by secret ballot in the assembly; however, they resorted to open ballot (cheirotonia) when the issue at stake was particularly important and a large majority was sought (Musti, Demokrat´ıa, xvii–xx). The accusation he made of the British model was that a minority could trump the majority, or a section of one of the two assemblies could annul the decision taken by the majority. Bicameralism was in his mind the accommodation of deliberation to a socially divided society; see on this regard Condorcet, Lettres d’un bourgeois de New-Haven, in O, 9:74–76. From a manuscript note written by Condorcet during his chairmanship of the committee charged with drafting the constitution, quoted in Magrin, Condorcet, 145. Schmitt, Political Theology, 63. Habermas is thus convincing when he argues that the opposition between instrumentality and normativity is wrongly posed within a deliberative approach to politics. Montesquieu, The Spirit of the Laws, bk. 11, chap. 12. Sieyes, Instruction donn´ee par S.A.S. Monseigneur le duc d’Orl´eans, . . . (1789), in O, 1:68. Hence his radical disagreement with the utilitarians; his theory of deliberation countered the premise of the idea of enlightened despotism shared by the physiocrats—namely, that the outcome alone, not procedures and the principle of equality, were essential conditions of the deliberative process. See Baker, Condorcet, 214–19. The “only legitimate condition” was that a person resided permanently in the country for at least one year and was an adult (twenty-one years of age). However, he compromised his universalism in the Convention and did not defend the political rights of women. But his writings on women’s emancipation are still unsurpassable in terms of equality. This explains his criticism of the Constitution of 1789, which defined freedom through the principle of harm and thus gave the majority the power to decide over what constituted harm and where freedom must end; Alengry, Condorcet, 387; Baker, Condorcet, 56–58, 223–25. Condorcet, Sur les elections, 100. On his notion of equality, see Baker, Condorcet, 223; Alengry, Condorcet, 400–406. According to Rothschild, “not being dependent” is what Condorcet meant by liberty, a condition he deemed unique to the inner self as a feeling, rather

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NOTES TO PAGES 200–205

than a calculus of advantage (Economic Sentiments, 201–3). It was the extraordinary event of American constitutionalism that made him change his mind on the centrality of political rights and liberty. In De l’influence de la R´evolution d’Amerique he acknowledged that even a wise despot could respect economic freedom for reasons of security and stability (O, 8:14). 94. Condorcet, Lettres d’un bourgeois de New-Haven, in O, 9:14; Paine, The Rights of Man, 170. 95. For a contemporary example of the articulation of citizenship into legal, political, and civic, see Cohen, “Changing Paradigms of Citizenship.” 96. See, respectively, Condorcet, “Aux amis de la libert´e,” in O, 10:202, and “D´eclaration des droits” (1789), in O, 9:181–96. 97. Condorcet, “Exposition,” 341; “A Survey,” 193. 98. Condorcet, “Id´ees sur le despotisme,” O, 9:167. “The principle of the natural equality of man implied the democratic right of the still unenlightened many to participate in the formation of laws”; Baker, Condorcet, 225. 99. In analyzing the way to make the list of candidates (elections in the primaries), he stressed the egalitarian character of elections because they subjected the final decision to the numbers of votes, not merit. “It is both awkward and time-consuming to form an initial judgment about the merits of the candidates, and difficult to rank a large number of candidates in order of merit.” Hence his proposal to make the election of the representatives the outcome of two votes: “first, to list a set number of candidates, and second, to complete the election. In this initial vote, each voter will nominate a set number of candidates. . . . In the second vote, each citizen will judge which candidates he considers most worthy”; Condorcet, “Exposition,” 396–97; “A Survey,” 218. 100. Condorcet, Sur la forme des e´ lections (1789), in O, 9:288. 101. Condorcet, “Examen sur cette question,” in O, 9:334. 102. Condorcet, “Exposition” 344; “A Survey,” 194; Baker, Condorcet, 225, 243; “hence the more numerous the assembly, the more predisposed it will be to make false decisions” (Condorcet, Sur les e´ lections, 30). 103. Condorcet, “Exposition,” 342; “A Survey,” 196. 104. Condorcet, “Exposition,” 343; “A Survey,” 196. 105. His argument was essentially prudential and historically contextual (he was personally a victim of persecution). He did not, however, make a normative argument for secrecy; that is to say, he did not make it a condition for more rational decisions or for decisions that better served the goal of impartiality. I discuss reasons for and against secret and public ballots in Mill and Democracy, 104–22. 106. See Jaume, Le discours jacobin, 316. 107. Condorcet, “Exposition,” 349; “A Survey,” 196. On the several forms of stops that Condorcet envisaged, in the local assemblies as well as the national one, see his “Projet de constitution,” title III, sec. V; and title VII.

288

NOTES TO PAGES 205–208

108. See Elster, Ulysses Unbound, 13. Examples taken from private life or private institutions to prove or disprove the effectiveness of delay in decisions apply to public domains whenever we recognize that decisions are supposed to be for the general public, not each individual taken atomistically or in isolation. Legislation that requires delay or a trial separation before the final divorce fits Condorcet’s theory because its logic is that of giving reconciliation another chance: the partners are supposed to think twice before deciding on divorce. The perspective of time delay is meant to favor the preservation of the (interest of the) “association” (marriage) rather than the interest of the partners taken individualistically. 109. Waldron had perhaps the best perception of Condorcet, although he uses him to emancipate Rousseau from the accusation of barring discourse in the assembly; see his contribution in “Democratic Theory and the Public Interest,” 1326–28. 110. Condorcet, “Exposition,” 349; “A Survey,” 196. the constitution specifies in advance which issues or decisions can be subjected to time delay. All issues and decisions that people can vote on, such as all ordinary laws but not administrative decrees and fiscal and tax laws, are open to time delay. 111. Condorcet, “Id´ees sur le despotisme,” in O, 9:166. 112. “. . . nothing tended more to throw power into the hands of administration . . . than a neglect of, or departure from, the rules of proceeding. . . . So far the maxim is certainly true, and is founded in good sense, that as it is always in the power of the majority, by their numbers, to stop any improper measures proposed on the part of their opponents, the only weapons by which the minority can defend themselves against similar attempts from those in power, are the forms and rules of proceeding . . . by a strict adherence to which, the weaker party can only be protected from those irregularities and abuses, which these forms were intended to check” (Jefferson, A Manual of Parliamentary Practice, 1–2). 113. Condorcet, “Exposition,” 344 (my translation); “A Survey,” 194. Condorcet was not interested only in proceduralism; he contemplated the conditions of education and social or material opportunity (“secours publics”) as essential circumstances of democracy—fundamental requirements to counter the socially created obstacles to the enjoyment of rights and equality (such as ignorance, poverty, disease, and old age) (articles 23 and 24 of the “Projet de D´eclaration des droits,” 421). In the course of his democratic evolution, Condorcet moved away from the centrality of procedures (and voting schemes in particular) to focus more on public instruction and social justice (McLean, Introduction to Condorcet, Foundations of Social Choice, 70–71). 114. Condorcet, “Exposition,” 347; “A Survey,” 197. 115. Manin, The Principles of Representative Government, 237. 116. Gueniffey, Le nombre et la raison, 17. 117. The reason why electors could not gather was not one of mere expediency. Both in America and France, the choice of assembling representatives, but not

289

NOTES TO PAGES 208–211

electors, was seen most of the time as a wise counter-answer to “pure” direct democracy. “Every person,” said Noah Webster, “moderately acquainted with human nature, knows that public bodies, as well as individuals, are liable to the influence of sudden and violent passions, under the operation of which, the voice of reason is silenced” (Bailyn, The Debate on the Constitution, 1:131). 118. The creation of the American Republic is a great example of the battle over the extension of democracy in the representative government; see in particular the debate over the role of popular assembly in the Rhode Island debate over the referendum for the ratification of the U.S. Constitution (Bailyn, The Debate on the Constitution, 2:270–75). In commenting on that debate, Fishkin has proposed deliberative gatherings among citizens as a means to amend electors’ isolation and counter the incentive of modern citizens to be “rationally ignorant” (Fishkin, The Voice of the People, 1–63). 119. Condorcet, “Exposition,” 347; “A Survey,” 195. 120. Condorcet, “Project,” title III, sec. V (articles 1–3). But see also his “Id´ees sur le despotisme,” in O, 9:147–52. The primary assembly site mimicked Athens’ practice of the king archon, on whose walls the stones with the inscription of the laws were posted so as to give all citizens the chance to know the nomoi (Hansen, Athenian Democracy, 163). On the educational and egalitarian function of the primary assemblies, see Cahen, Condorcet et la R´evolution franc¸aise, 68. On the “liberal” role played by those assemblies, see Mazzanti Pepe, “Condorcet e Brissot,” 51–91. 121. Condorcet, “R´eponse a` l’Adresse aux Provinces, ou R´eflexions sur les e´ crits publi´es contre l’assembl´ee nationale” (1790), in O, 9:530. 122. Mazzanti Pepe, “Condorcet e Brissot,” 64–69. 123. An extremely lucid exposition of the role of representation and coordination played by Turgot’s plan is to be found in Condorcet, Vie de Monsieur Turgot, 136–51. For a summary of the debate on the relationship between the legislative body and the local assemblies, see Cahen, Condorcet, 486–93; on the transformation of prerevolutionary ideas of local and social representation into a modern theory of representation, see Baker, “Representation,” 480– 84. On the impact of Turgot’s ideas and the administrative experience of the provincial assemblies in prerevolutionary France in Condorcet’s assessment of primary assemblies in representative democracy, see Magrin, Condorcet, 61–64, 76–78. 124. Condorcet, “Projet de constitution,” title IV, art. 11. 125. The United States set the ideal model of representation, which could not, however, be mechanically transplanted in a country in which there were “privileges,” “hereditary prerogatives,” “distinctions among the citizens,” and intermediary “bodies” (Condorcet, Lettres d’un bourgeois de New-Haven, in O, 9:122). 126. Condorcet, “Exposition,” 347; “A Survey,” 197. 127. “In this politics of reason, the contradiction between inalienability and indivisibility can in principle be resolved: at the end, Condorcet

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NOTES TO PAGES 211–216

is . . . the only one who reached this point” (Jaume, Le discours jacobin, 311). 128. Cochin, L’esprit du jacobinisme, 80–81. 129. Condorcet, Lettres d’un bourgeois de New-Haven, in O, 9:83–93. “It is no great problem that citizens have opposite opinions on some important objects . . . that these opinions form kinds of momentary parties so long as you do not give these parties a durable existence and make them independent from the enthusiasm that produced them” (87). 130. Condorcet, Lettres d’un bourgeois de New-Haven, in O, 9:88. 131. “We consider it very important that the men in whose hands the national powers will reside are chosen by the citizens themselves; that they are chosen by repute and not intrigue, and finally that these posts are no longer given almost exclusively to the inhabitants of just one city, as would be the case if the election were conducted by the assembly of the people’s representatives or any single body” (Condorcet, “Exposition” 402; “A Survey,” 221). But see, McLean, Introduction to Condorcet, Foundations of Social Choice, 46–47. 132. Condorcet, “Exposition,” 366 (my translation); “A Survey,” 223. The right of “resistance of oppression” was already contained in the 1789 Declaration of the Rights of Man and the Citizen. 133. Kintzler, Condorcet, 21. “The frequent renewal of the legislature, the people’s freedom to repeal laws they considered inimical to their freedom, and the immediate replacement of assemblies that refuse to listen to them offer a sufficient guarantee against any plans to usurp power or any scheme to destroy freedom which might be feared if a single assembly were the sole source of all social power” (Condorcet, “Exposition,” 357–58; “A Survey,” 200). ´ 134. Jaume, Echec au lib´eralisme, 20. Condorcet’s model was the Constitution of Pennsylvania, which instituted the council of the censors (art. 47). His procedure of constitutional revision in ordinary times was, however, indirect because the citizen was supposed not to submit an emendation proposal immediately, but first to submit to the assembly the question on whether the majority thought there was reason to discuss the amendment. 135. Jaume, Le discours jacobin, 309–10. 136. A representative assembly, Condorcet agreed with Sieyes, could not contemplate representatives with instructions or immediate recall, nor could it make representatives into mouthpieces of their electors and oblige them to submit any proposals for citizens’ approval without deliberating (“Exposition,” 340; “A Survey,” 192–93). 137. See Gueniffey, “Les assembl´ees et la repr´esentation,” 235. 138. Condorcet, “Projet de constitution,” title VIII (articles 5–7, 10, 13, 19–20, 22, 26–27). The judgments on the democratic character of the right of censure vary. According to Elizabeth and Robert Badinter, Condorcet’s proposal shows all his “confidence” in “direct democracy” but weakens the assembly and exposes society to the risk of a permanent electoral process (Condorcet, 539). According to Mathiez, instead, it was “un vernis de

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NOTES TO PAGES 216–221

lib´eralisme d´emocratique” (“La Constitution de 1793,” 497–521). Finally, according to Pertu´e, Condorcet’s citizens were not actually given any real power to propose legislative initiatives; the most they could do was to suggest them. Since the right of repeal did not give the people the right of ratification (which resided in the representative assembly), Condorcet’s project did not in fact propose “une d´emocratie pure,” although it did not propose a consistent representative regime either (Pertu´e, “La censure du peuple,” 324). The right to censure a law before it was enacted appeared first in the Constitution of Pennsylvania; Noah Webster censured it as being responsible for annihilating the legislature by reducing it to “an advisory body” (Bailyn, The Debates on the Constitution, 133, footnote). 139. Pertu´e, “La censure du peuple,” 325. This seems to confirm Papadopoulos’ opinion according to which both the right to veto a law by citizens and the right to formulate new laws by citizens have a kind of legitimation character rather than a destabilization effect (“Analysis of Functions and Dysfunctions,” 433). 140. Alengry, Condorcet, 585. 141. Jaume, Le discours jacobin, 315. 142. Manin, The Principles of Representative Government, 179. 143. Condorcet, “Exposition,” 240; “A Survey,” 192. We have to pay attention to the fact that Condorcet grounded the negative right in a careful delimitation of the matters on which the legislative body is supposed to decide, so that not all acts are open to repeal, and certainly not “decrees” (executive acts) and tax legislation. 144. In the section of his plan dedicated to the Declaration of Rights, Condorcet specified in great detail what the “violation” of rights means and when popular censorship is justified. 145. Linz, “Presidential or Parliamentary Democracy,” 8. 146. Dunn, “Situating Democratic Political Accountability,” 339–40. 147. Manin, The Principles of Representative Government, 177. 148. In a democracy no elective positions are for life, even if nominees can be for life (American Supreme Court justices, or bureaucrats and public officers). 149. Mill, “On Government,” 22–26. 150. Before the Revolution, Condorcet started searching for the most consistent way to relate good laws and representation. In 1787 he made his first proposal to integrate the right to censure by the citizens with a voting procedure in the representative assembly that required a large majority, particularly in those cases in which the laws pertained to essential issues, such as police or public security (Lettres d’un bourgeois de New-Haven, in O, 9:30); this proposal was perfected in the plan of constitution (364–65). 151. Mazzanti Pepe, “Condorcet e Brissot,” 54. 152. Political parties, Stokes has argued, make it possible to keep a link between mandates and representation; their weakness means democratic weakness (“What Do Policy Switches Tell Us about Democracy?” 125–28).

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315

Index abrogative referendum, 257n86 absolutism, age of, 73 accountability, 128, 160 Ackerman, Bruce, 234n15, 274n58 acting in the place of, 103 Adams, John, 178, 280n9 adhesion: apolitical view of, 49; direct, 49; reflective, 49–50, 51–52, 122 advocacy: and inequality, 44, 46; and political deliberation, 47; and representation, 11, 44–48, 133, 156, 225 Alengry, Franck, 162, 217 Althusius, Johannes, 251n23 American Federalists, 153, 208, 231n23 American Republic, 290n118 American revolutionaries, 27 Ames, Fisher, 279n41 Ankersmit, Frank R., 230n20, 239n71, 245n120 antisovereignty argument, 53–54 Arendt, Hannah, 96; Between Past and Future, 260n135; freedom in politics, 97; on Kantian aesthetic judgment, 265n48; on "the people" in representative government, 52; rejection of popular sovereignty and representation, 247n132; On Revolution, 53, 247n129

Aristotle, 61, 79, 80, 92, 120; on deliberation in collective settings, 206; distinction between constitutional laws and ordinary laws, 284n58; distinction between forensic and deliberative rhetoric, 268n75; dual definition of equality, 40; on judgment’s time dimension, 94; legislative power attributed to the assembly of the citizens, 285n74 "as if" reasoning, 48, 120, 124–26, 129, 266n61 Athenian democracy, 1, 2, 34, 42; jury size, 220; Paine on, 173; plan to resist the siege of the Peloponnesians and the Boeotians, 285n64; procedures to check majority decisions, 287n82; simultaneity of "standing" and "acting," 211; a well-regulated system of popular deliberation, 285n62 atimia, 276n87 "audience democracy," 242n87 authentication, 76 authorization, source of, 128 autonomy of judgment, 103 Badinter, Elizabeth, 291n138 Badinter, Robert, 291n138 Baker, Keith Michael, 185 Balibar, Etienne, 248n134

317

INDEX

Balzac, Honor´e de, The Country Doctor, 91–92 Barry, Brian, 262n15 Beccaria, Cesare, 124, 128, 192–93 Bentham, Jeremy, 135 Berlusconi, Silvio, 236n36 bicameralism, 196–97 Bodin, Jean, 63, 70, 71, 72, 73, 116, 150 Boniface VIII, Pope, 235n25 Brissot, Jacques Pierre, 66, 154, 159, 277n7, 279n6 Bryce, James, 108, 137 Burke, Edmund, 22, 69; autonomy of representatives from constituents, 25, 89, 160–61; on confidence, 157–58; on mediating function of representative institutions, 240n76; on opinion, 244n110; speech to the electors of Bristol, 236n35; "virtual" representation, 151 Caesarism, 143 Cartesian metaphysics, 75 Castoriadis, Cornelius, 231n26 checks and balances, 189 Cicero, 201 citizens: metamorphosis of into electors, 147; negative power of, 228 citoyen contributaire, 69 civil associations, 38 civil disobedience, 136 classical republicanism, 172 Clinton, William, 249n146 cogency, 192 cogitation, 201 Cold War liberalism, 84 collegiality, 194, 195 commercialism, 252n32 communication: in the formation of opinions, electoral issues, and the selection of candidates, 33; inside and outside of state institutions, 111; and representative democracy, 133, 134 competence, 30, 155–61 compromise, 36, 97 Condorcet, Marquis de, 68, 97, 103, 139; on American constitutional conventions, 210; and Beccaria’s notion of judgment, 192–93; on bicameralism, 196–97; breaking the election cycle, 217–18; call

318

for new elections, 220–21; campaign against the marc d’argent, 167; circular model of representation, 177, 202; citizens presumed to be sufficiently competent to vote and deliberate, 182; civic view of politics, 177; co-editor of Le R´epublicain ou le D´efenseur du gouvernement repr´esentaif, 167; collegiality principle, 194–97; and Comit´e de Constitution, 162; on communication inside and outside of state institutions, 111; conditional obedience, 216, 217; constitutional finesse, 186–87; contribution to modern democratic constitutionalism, 180; cooperative interdependence, 207, 284n57; criticism of Montesquieu, 191, 195; on deliberation techniques and forms, 190–93, 196, 197, 199–201, 202–5, 287n89; deliberative syllogism, 191–93; democracy and representation, redefined relationship between, 176; democratic decision-making process, 182–83; democratic evolution, 289n113; democratic theory of the constitution, 190–93; on despotism, 28, 187–90; difference from Kant, 282n35; on dissolution of the representative assembly, 218; egalitarian premise, 199–201; electoral scheme, 212; Equisse, 179; fallibility principle, 180; and Fauchetins, 66; flexible mandate, 194; on four causes of "false decisions," 284n58; immediate rather than "direct" democracy, 31, 182; indirect despotism, 188–90; interactive ability, 206; Jacobin criticism of, 163; on judgment, 78; jury theorem, 178; law grounded in "general will," 184; laws made in conformity to justice, 282n33; legalizing the revolution, 184; legi-centrism, 286n78; Lettres d’un bourgeois de New-Haven a` un citoyen de Virginie, 270n1, 280n9, 284n56, 286n77, 292n150; on liberty, 43, 287n93; model of Constitution of Pennsylvania, 291n134; National Jury, 286n76; on natural reason, 84, 93; on natural rights, 180, 201; negative power, 188, 215–17, 237n41, 292n143; "On the meaning of the word Revolutionary," 185–86; perpetual innovation, 184, 185;

INDEX

1793 Plan of Constitution, 12, 81, 126, 175, 177–78, 186, 210, 212; and prevention of extemporaneous decisions or "imprudent participation," 183–84; primary assemblies, 41, 165, 208–13, 281n15; and problem of arbitrariness implied in majority rule, 266n62; promulgation, 182; on reason, 184–85, 186; reclamation, 182; refutation of Sieyes’ mono-archy logic, 194, 195; reliance on Becarria’s model of judgment, 192–93; republicanism of the norm, 180–81; reputation as political theorist, 178–79; revocation of laws, 181, 182–83, 187; right of constitutional revision, 185, 187; "right of sovereignty," 181, 200; right to ratify the constitution, 181; right to repeal legislation, 213–14, 220; right to resist tyranny, 185, 188; on role of the modern party in representative government, 212; secret ballot, 84; selective competence, 206–7; separation between scrutin de pr´esentation and scrutin d´efinitif, 204; Sieyes’s suggestion that he promoted federalism, 89; sources of inspiration, 192; sovereignty interpretation, 57, 90, 176–77, 184, 193; sovereignty of surveillance, 213–16; strategies to articulate discussion or political temporality, 204–5; strategy of counter-powers, 195; success of theoretical ideas, 178–79; third way between representative and radical democracy, 195–96; time delay concept, 201–2, 286n79, 286n80, 288n108; time limitation, 206; use of term "representative democracy," 27; voting modes, 178, 193, 196, 205 confidence, 155–56, 157–58, 160 Constant, Benjamin, 51, 54, 97, 143, 166, 171, 178, 180 constitutional binding, 95 constitutional democracy, 95. See also Condorcet, Marquis de "constitutional ethos," 36 constitutional revision, 185 constitution-making: as institution of the space and time of politics, 97; only true act of sovereign will, 57, 90 Constitution of Pennsylvania, 187

constitutions, of representative democracies, 43 containment, protection by, 84 contractual mandate. See juridical theory of representation contract vs. law, 131 Cordeliers, 66 Corneille, Pierre, 91 corporatist representation, 37, 240n77 creativity, 122 criminal justice, 267n66 cultural minorities, and advocacy, 46 Dahl, Robert A., 31, 229n7, 232n37, 232n39, 244n108 decadence, 82 deception, 80 decisionist sovereign, 54 Decreti delegati (Workers’ Charter), 233n9 deism, 180 delegation: privatist model of, 75–76; vs. representation, 61–62; as the work of judgment, 74 deliberation: as a circular march, 202; defined, 198; in democracy, 192; and faculties of understanding and hearing, 47, 50; formal, 203; future-oriented, 128; informal, 202–3; presumption of impartiality, 127; requires people to reflect on their views in the company of others., 114; as rhetoric, 80; Rousseau’s view of, 80–81; traditionally excluded political equality, 199; transforms opinions from plurality to unity, 203–4. See also Condorcet, Marquis de deliberative theory of democracy, 27, 119–20 de Lolme, Jean Louis, 251n14 democracy: antinomy of, 112; competitive nature of, 47; discourse theory of, 119; and federation, 277n6; minimalist conception of, 31, 35, 238n60, 242n89; as primitivism, 144–45; procedural definitions of, 52, 247n130. See also Athenian democracy; direct democracy democracy, modern: does not require citizens’ participation in legislative deliberation, 10–11; as mixed government, 2; participation both costly and difficult, 2; presence through ideas and speech, 3

319

INDEX

democratic constitutionalism, 190–93 democratic elitists, 52 democratic formalists, 52 democratic identity, 209 democratic norm, 55 democratic representation. See representative democracy democratic republicanism, 167–72 democratic society, built around conflict, 34 democratic theory, 17–18, 28–29, 139–40 depersonalization, principle of, 192 Descartes, Ren´e, 153 "despotic aristocracy," 188 despotism: indirect, 28, 187–90, 226; and representation, 213–14 Dewey, John, 1 d’Holbach, Paul-Henri Thiry, 69, 251n14, 252n37 direct adhesion, 49 direct democracy, 6, 10, 31, 113–14, 138; and imperative mandate, 219; makes opinions identical with the will, 32; Rousseau’s view of, 34, 61, 65; seen as paradigmatic, 17; Sieyes’s view of, 130, 145 direct despotism, 189 direct voting, as a discrete series of decisions (pointillist sovereignty), 31 discontinuist view of representation, 271n20 discontinuity thesis, 64, 231n23, 271n20 discussion, 3, 198, 282n33; Condorcet’s strategies to articulate, 204–5; "government by discussion," 3. See also deliberation disfranchisement, 276n87 dissent, 87, 136 Downs, Anthony, 22 Dworkin, Ronald, 245n118 ekkl¯esia, 5 elections: encourage extraelectoral forms of political action, 26; feature of both direct and indirect governments, 61; ideological character, 159; inherently aristocratic, 7, 9; make democracy possible, 3; in representative politics, 30–31; simultaneously separate and link citizens and government, 14, 19–20, 32 electoral consent, currency of, 26, 146–47 electoral defeat, 31–32

320

electoral terms, 220 elitist theorists, 53 Elster, Jon, 95–96, 283n48, 283n49 England: birth of the electoral process, 19; constitutional revolution, 189 Epicureans, 267n63 equality: as the citizen’s right to support or oppose laws or government policies, 42–43; dual nature of, 40; legal, 42, 43, 44; political, 6 exchange vs. barter, 144–45 exclusion: criteria of, 152; justified in the name of national interest or social utility, 151 exercise of political power (forma regiminis), 102 extraparliamentary forms of self-representation, 27 fair representation, 243n97 Fauchetins, 66 federalism, 65, 162–67 Federalist 10, 231n23 Federalist 63, 164, 207 Federalist Papers, The, 1, 6, 143, 169, 219 Federalists, 139, 219 Ferrara, Alessandro, 240n73 fictional reasoning. See "as if" reasoning fictions: as an aid to action, 267n64; paradigmatic, 124; rhetorical, 266n61 Filmer, Robert, 19, 60, 63, 72, 73, 257n92 Fishkin, James S., 290n118 flexible mandate, 194. See also Condorcet, Marquis de forensic speech, 47, 50, 128 formalism, 57 form of sovereignty (forma imperii), 102 Fralin, Richard, 62–63 ´ France: effect of elections, 20; Etats G´en´eraux, 67; first constitutional debate, 189; idea and practice of representative democracy, 66; Parisian municipal government, 66; prerevolutionary representation, 66–69; pre-Revolution estates, 68; shift of monarchy from delegation to representation, 67; three revolutions, 278n22 freedom: negative, 96; passive and active, 149–52 freedom of speech, 82

INDEX

free mandate, 68, 71, 88, 89, 130, 132, 146, 156–57, 165 French Revolution, 27, 138–39, 163, 167 Friedrich, Carl J., 24, 77, 240n75, 275n76 Gargarella, Roberto, 232n38 Gauchet, Marcel, 267n68, 272n40 Geneva, 250n10 genus demonstrativum, 198 Girondins, 139, 162, 178 globalization, 53 "government by discussion," 3 Grotius, Hugo, De jure belli ac pacis (The Law of War and Peace), 63–64 group rights, 8 Gueniffey, Patrice, 157, 275n83 guild socialism, 240n77 Guizot, Franc¸ois Guillaume, 43, 140 Habermas, J¨ urgen, 27, 56, 119, 241n83, 248n142, 287n86 Harrington, James, 84, 85, 199 Hart, H. L., 8 Hegel, Georg Wilhelm Friedrich, 36, 37, 75, 154, 191, 240n76, 267n66 Herodotus, Histories, 8 Hobbes, Thomas, 22, 24; democracy as mix of equality and aristocracy, 34; distinction between will and judgment, 259n122; judgment as a divisive power, 84; Leviathan, 43, 95; model of authorization, 71, 234n22; political covenant concept, 283n47; representation as procuration, 275n69; and Sieyes, 140; on the sovereign, 154; state positivism, 101; total political obligation to law of state, 116 ho boulomenos, 2, 5 ho dunasteuon, 2 Holmes, Stephen, 260n135 identity politics, 8 ideology: criticized by theorists of deliberative democracy, 119–20; in deliberative politics, 265n46; and electoral process, 159; and judgment, 120; and political representation, 133; and popular sovereignty, 120; rhetoric and, 119; Skinner on, 120. See also Kant, Immanuel; political parties; reflective adhesion

imagination, 80; essential tool in deliberation and discourse, 122–23; as the faculty of perception without the presence of the object, 120–21; role in Western philosophy, 256n79; Rousseau’s criticism of, 82; speech as product of, 122 immediacy, correctness of, 93 immediate democracy, 1, 31, 182–83 imperative mandate, 65, 68, 71, 129, 130, 132, 214, 219, 275n76 imperium non paternale sed patrioticum, 103 imprudent participation, 183–84 inclusion, and popular sovereignty, 64 incompatibility theory (between democracy and representation), 6, 7 indirect despotism, 28, 187–90, 226 indirectness, 3; aids political participation, 5, 29; encourages distinction between deliberating and voting, 16; entails co-participation, 104; exercise of power, 105; test of the legitimacy of, 103 inequality: and advocacy, 44, 46; legal, 278n34; Rousseau on, 98, 256n73 infamia, 276n87 informal sovereignty, 109–11, 137, 228 institutional theory of representation, 21, 23, 44, 49 instrumentalist view of representation, 26–27 interactive ability, 206 interpretation of experiences, 97 is¯egoria, 2, 40, 42 isonomia, 2, 40 Italy, factory strikes, 18–19 Jacobins, 143, 164, 178, 276n1 judgment, 79; as component of popular sovereignty, 78, 225; ethical impartiality, 129; genres of, 126–30; ideological function of, 120; ideologistic function of, 120; not an autonomous power, 94; in political deliberation, 28; as reflection, 84; role in representative democracy, 5, 16, 47; soft power of, 74, 115–19; theory of, 265n48 judicial power, indirect relation to politics, 127–38

321

INDEX

judiciary, attempts to reduce partisan elections for, 128–29 juridical theory of representation, 49, 57, 61, 108, 268n78; dualism between state and society, 21–23; not applicable to democracy, 44, 55; and partial interests, 131; and political participation, 74; representative directly and legally accountable to client, 29, 132; representative possesses only those powers granted by client, 133 Kant, Immanuel, 6, 12, 88, 116, 199; approaches to, 261n1; as if reasoning, 124–26; conception of political freedom, 264n37; contribution to concept of ideology, 120–21; critical analysis of Epicureans and Stoics, 267n63; The Critique of the Power of Judgment, 103–4; distinction between forma regiminis and forma imperii, 106; distinction between the normative level and the political level, 105, 106; forms of power relations, 103; on imagination, 120–21; on judgment, 91, 122; legal positivism, 101, 263n34; on legitimacy of representation, 105; Metaphysics of Morals, 125–26; no direct link between citizens’ judgment and their political actions, 105; on nonrepresentative form of government, 77; norm of legitimate indirectness (representation), 106; opinion in the public sphere, 115, 116–17; political obligation to the law of the state, 116; reinterpretation of Rousseau’s arguments of legitimacy, 102; rejection of democracy, 261n14; on relationship between power and will, 103; social contract theory, 123–24; and sovereignty of the will, 11, 123; theory of judgment, 91, 117–18, 122; transcendental schematism, 120–21, 142 Kateb, George, 242n88 Kelsen, Hans, 55–56, 57, 129, 130, 131, 248n138, 256n76 Kishlansky, Mark A., 19, 20 labor, 142 Lafayette, Marquis de, 167 language, 49, 268n73

322

lawgivers: ancient myth of, 180, 186; must be neutral and disinterested, 58; Rousseau on, 186 Lefort, Claude, 32 legal equality, 42, 43, 44 Lenin, Vladimir, 114 Levellers, 19 liberal constitutionalism, 25 liberal parliamentarism, 21 liberty, 104; Condorcet on, 43, 287n93; negative and positive, 146; Sieyes on, 141, 147, 172 Linz, Juan J., 218 listening, 111 Locke, John, 70, 140, 235n23; on the education of the gentleman, 160; on judgment, 115, 263n32; on judicial power, 127; nation as natural society prior to the body politic, 150; The Second Treatise on Government, 142, 236n39 lottery, 34, 61, 85, 238n59 Machiavelli, Niccolo, ` 230n20, 266n59 Madison, James, 25, 159, 160, 161, 189, 195, 212, 286n77 Maffei, Scipione, 250n13 magistrates, 75–76, 85 majority rule, 41–42, 158, 182 Malberg, Raymond Carr´e de, 69, 147–48, 252n29, 269n86 Malcolm X, 36 mandate, 60; contractual, 132; political, 28, 132; voluntary, 36. See also free mandate; imperative mandate Manent, Pierre, 284n55 Manin, Bernard, 9–10, 12, 141, 223, 245n118 Mansbridge, Jane, 18, 133, 233n1, 238n57, 264n42 market, 148 Marsilius of Padua, 72, 73, 253n42 Marx, Karl, 23, 56, 66, 140, 149, 272n38; critique of justice discourse, 87; on exchange value, 148; The Jewish Question, 147; on legislation in a nonrepresentative democracy, 114; on Locke, 272n41 master/servant relation, 75 Mathiez, Albert, 291n138 McLean, Iain, 286n77 meaning, creation of, 122

INDEX

Michels, Robert, 232n35 Mill, James, 151, 178, 220, 269n93 Mill, John Stuart, 24, 135, 182 mimesis, 97 minimalism: conception of democracy, 31, 35, 238n60, 242n89; paradoxes of, 88–90 minorities, 87, 136 mixed government model, 7, 15, 53 monarchical absolutism, 138 money: analogy with voting, 147; Montesque on, 146, 148, 272n38; reproduces things under a new form, 148; as scale to measure rationality of decisions, 142; Sieyes’s view of relation to representation, 140–41, 148 Moniteur, Le, 167 Montagnards: constitution, 286n76; and depotism of the assembly, 195; hostility to Condorcet’s plan, 209, 279n6 Montesquieu, Baron de, 6–7, 9, 99, 170, 217; antiegalitarian form of bicameralism, 197; combining of separation of powers with representation, 70; "commercial republic," 140, 143; compromise between sovereignty of the law and sovereignty of interests, 71; defense of social pluralism, 70; deterministic conception of the law, 190–91; discontinuism, 64; on lottery and election, 61; maxim of "moderate government," 188, 195, 274n61; on monarchical government, 252n36; on money, 146, 148, 272n38; nondemocratic strategies, 189; parliamentary theory of representation, 69; power limitation by means of power, 268n74; rationale of confidence, 158; representative government as a form of aristocracy, 73; separation of representation from democracy, 7; The Spirit of the Laws, 69, 144, 170, 190, 196; theory of government of the moderns, 251n14 Morgan, Edmund S., 234n16 multiculturalism, 8 Napoleon, 143 nation, 89, 150, 152–55 National Assembly, 215 natural aristocracy, 155–56

natural law tradition, 63, 64, 250n10, 271n15 natural rights, 167–68, 180, 201 negative freedom, 96, 146 neo-Schumpeterian theorists, 4 New England republicanism, 244n108 nondiscursive events, 82 nonproportional counting, 243n98 nonrepresentative democratic government, 225 O’Connor, Justice Sandra Day, 226 oligarchy, 188 On The Social Contract Or Principles of Political Rights (Rousseau), 7, 54, 64, 73, 93, 205; analysis of the tribunate, 216; delegation differs from representation, 63; denial of representation, 62; distinguishes between "extraordinary assemblies" and "periodic assemblies," 258n93; four kinds of laws, 108–9; the "general will," 107–8; irrelevance of the issue of suffrage, 94; minority plays an essential role in the creation of the majority and in its legitimacy, 110; multiple meanings of deception, 80; ratification, 81; representation as a modern institution, 64; representation as a surrogate reality, 98; requirement of silence in the popular assembly, 104; on will of the magistrate, 76 open ballot, 287n82 opinion: and association, 33; and deliberation, 203–4; and direct democracy, 32; and popular sovereignty, 74, 108, 225; and representation, 35, 51; Rousseau on, 106, 116 Paine, Thomas, 3, 32, 68, 143, 192; claim that large territorial states could be republican, 170; Comit´e de Constitution, 162; and Condorcet, 167, 175; continuity between ancient and modern democracy, 6; delegation based on consent, 169; on democracy of Athens, 169, 173; denied that the ancients knew representation as a political institution, 231n23; on direct democracy, 139; equality of political rights, 169; interpretation of the republic, 168–69; recognized author of

323

INDEX

Paine, Thomas (Cont.) the Constitution of Pennsylvania, 167; Rights of Man, 167; and Sieyes, 12, 145; sovereignty as res publica, 168; and Spinoza, 279n42; theory of representation, 4, 167–74, 192 Papadopoulos, Yannis, 292n139 paradigmatic fictions, 124 Pareto, Vilfredo, 232n35, 237n45, 265n47 parliamentarism, crisis of, 22 parliamentary sovereignty, mythology of, 130 particular interests, 86–87, 89, 131, 142, 258n103 parties. See political parties partisanship, as an active manifestation of the general, 35–39. See also ideology; political parties; representivity Pasquino, Pasquale, 140, 273n54 paternal government, 103 Pennsylvania Ratifying Convention, "James Wilson’s Opening Address," 277n6 "perfect" authority (plenitude potestatis), 73 Periclean reform, 5 perpetual innovation, 185 perpetuity, as the everlasting present, 94 persuasion, 80, 82 Pertu´e, Michel, 291n138 Pettit, Philip, 233n11 Phillips, Anne, 246n123, 269n87 physiocrats, 69–70, 140, 287n89 Pitkin, Hanna Fenichel, 59, 118, 223; The Concept of Representation, 9, 10, 22, 24; difference between formalistic and representative democracy in relation to equality, 244n107; on "interest" that constitutes political representation, 123 pity, 92–93 Plato, 33, 82, 83, 112, 120, 186 pluralist democracy, 240n77 pluralist management democracy, 37 poetics and rhetoric, 122 political binding, 56, 95. See also representivity political dependence, 129, 130–35 political language, 49 political mandate, 28, 132, 157, 219 political obligation, 157 political parties, 36, 37–38, 134, 160, 212 political power, hereditary holding of, 138 political spontaneity, 27 political temporality, 190

324

political virtue, 170 Polybius, 171 positive liberty, 146 positivism, 57, 101, 263n34 presumption of innocence, 124, 135 procedural law, 108 promulgation, 72, 182 proportional representation, 40–44 prospective judgments (laws), 128 public discourse, 5, 9 publicity, 105 public opinion, 108–9, 262n22 public reason, 126–27 public will vs. private will, 108 "pure" democracy, 144 ratification, 74, 81, 84, 88, 181, 257n86 rationalism, 57 Rawls, John: on constitutional assembly, 248n143; ideal if public reason, 123, 129; overlapping consensus, 269n93; on political parties, 36; on public conception of justice, 262n20, 284n57; public reason, 126–27, 268n77 realism, 99 reciprocity, 65 reclamation, 182 recollection, 97 referendum, 130, 257n86 reflective adhesion (perspectival similarity), 49–50, 51–52, 122. See also adhesion reflective judgment, 90–94, 121–22 reparative justice, 41 representation, 131; contemporary studies of, 8–9; as deferred presence, 246n123; as a democratic institution in political science, 17; in democratic theory and history, 18–20; as expediency, 233n8; institutional history of, 15; institutional theory of, 21–23, 23, 44, 49; instrumentalist view of, 26–27; interpretation of in relation to democracy depends greatly on the conception of sovereignty, 166; juridical theory of (see juridical theory of representation); justice in, 41, 42; of people’s opinion, 51; as a political process, 10, 13, 17–18, 24–25, 29, 58–59; practice of in mid-eighteenth-century Europe, 66; predates modern democratic states, 17; "problematic" when analyzed

INDEX

in relation to democracy, 39; proportional, 40–44; without representivity and advocacy, 156; as symbolic unity, 235n25; three theories of, 20–25; trustee view of, 45; view of as oxymoron if related to democracy, 7–8 representative democracy, 27; activates political unification, 20; and adhesion, 49, 51–52; as advocacy, 11, 44–48, 133, 225; antithesis of delegated democracy and plebiscitarian democracy, 134, 227; cannot be regulated like a "contract," 132; celebrates the public role of speech and opinions, 35; citizens are always present in some form and their judgment is always influential, 78; continuing relation between citizens and representatives, 50, 57, 78; on dualism between "the man" and "the citizen," 134–35; in the dur´ee, 51; as dynamic synthesis of two forms of representation, 33; emphasizes querulous nature of democracy, 33; essential requirement of, 68; excludes imperative mandate, 129; functions politically in a collective setting, 131; future-oriented nature of in an electoral system, 46; and ideology, 133; main theorists of, 270n2; making of the social political, 24–25; multitemporality and presence through voice and ideas, 225; neither aristocratic nor a defective substitute for direct democracy, 223; nonindependent relation between electors and the elected, 135; not an act of mere authorization or a contract, 132–33; not identical with electoral democracy, 4, 223; operates during the intraelection time, 51; paternity of term, 270n1; popular sovereignty as a guideline to and limit on legislative power, 126, 221; possible only within the conventional universe of electors and elections, 148–49; process of political will formation and expression, 6; as a process of unification, 20, 32, 133–34; relation of sympathetic similarity or communication, 133, 134; representivity and advocacy as irreducible features of, 42, 48; requires political notion of obligation or

mandate, 157; transforms and expands politics, 37; viewed as an oxymoron, 4 representative government, 27; developed along with the dissolution of corporate society, 131; as electoral aristocracy, 191; liberal theory of, 95–96; vs. representative democracy, 138; undemocratic character of, 1–2. See also Montesquieu, Baron de; Sieyes, Emmanuel Joseph representatives: dependent power, 58; disassociation from constituents, 25, 160–61; double identity as general and partisan, 58; judgment as dependent, 130; under juridical theory of representation, 29, 132, 133 representivity, 11, 49–52, 225; and advocacy, 42, 48; allows citizens’ opinions to be identified and known, 51; crisis of, 136; political dependence that makes representation democratic, 129; as reflective adhesion, 122 R´epublicain ou le D´efenseur du gouvernement repr´esentaif, Le, 167 republicanism, 172, 244n108, 275n84 responsibility, and judgment in justice vs. judgment in politics, 128 res privata, 168 res publica, 168, 169, 172, 173, 174, 175, 198 retrospective judgments (verdicts), 128 revocability, 90, 182 rhetoric: in democratic deliberation, 80, 119; and ideology, 119; and poetics, 122 rhetorical fictions, 266n61 Richter, Melvin, 284n55 Robespierre, Maximilien, 162, 178, 180, 276n1, 281n15 Rome: conception of the Emperor as the single sovereign, 253n44; political representation, 250n13; sovereignty, 254n46 Rosanvallon, Pierre, 138–39, 194 Rosenblatt, Helena, 249n8 rotation, 34, 61, 85 Rousseau, Jean-Jacques, 6, 7, 8, 12, 22, 64, 69, 130; aesthetic argument against representation, 254n52; antihumanist concept of politics in relation to sovereignty, 79; application of Aristotelian principles of poetics to

325

INDEX

Rousseau, Jean-Jacques (Cont.) politics, 79, 80; argument against the patrimonial theory of the state, 75; argument against universal suffrage, 94; argument of the "force of numbers," 30; citizen as a wholly artificial identity, 90–91; citizen consents to all laws, 107; consent crucial on issues related to taxation, 252n33; and controversies, 83; delegation as a kind of direct government, 65; delegation with instructions, 71–72; on deliberation, 82, 83, 199, 257n85; despotism identical with representation, 213–14; difference between political and private interests, 131; direct participation as a strategy of containment, 91; on direct rule, 144; disassociation between will and judgment, 112; Discourse on Inequality, 98, 256n73; Discourse on Political Economy, 70; distinction between delegation and representation, 157; distinction between natural reasoning and artificial judgment, 257n88; doctrine of general will, 23, 92, 115, 262n17; dual identity of man, 91; on elections, 61; "elective aristocracy," 62; ´ Emile, 84; endorsement of delegation in Constitutional Project for Corsica and The Government of Poland, 62; endorsement of Geneva’s political institutions as a model, 63; focus on mental work of citizen when voting on laws, 107; and freedom of speech, 81–82; how political autonomy can be reconciled with majority rule, 107–11; on immediacy of the will, 90, 91–92; on individual will, 113; on legislative initiative in the assembly, 83–85; legitimacy argument, 173; Lettres e´ crites de la montagne, 250n9; men should be taken as they "are," 99, 100; minimized need to consult the people, 85; model of delegation, 75–76; negative power, 216; notions of artificiality, 92; on opinion and sovereignty, 106, 116; opposition of representation and sovereignty, 7; paradigm of popular sovereignty, 52–53; paradox of "political association," 111; and persuasion, 82; on popular participation as a strategy of

326

containment, 84; on private interests, 86–87, 89, 258n103; proposal for civic clubs, 256n83; proposal for civic education, 256n81; on ratification, 81, 88; reading of Polysynodie, 258n99; on reason and reflection, 93; reconciliation of the social and political orders, 141; rejection of both representative and direct democracy, 34, 61; rejection of constitutional binding, 95; relationship between sovereign and delegates, 76–78; representation as both modern and a sign of feudalism, 64; representation enacts a modern form of slavery, 100; sense of political authorship is important, 111; separation of the sovereign and the government, 75; and Sieyes, 140; suspicious of the effects of sight and hearing on human imagination, 82; theory of deliberation, 80–81; theory of direct participation, 26, 74, 144; theory of freedom, 97; theory of legislation, 193; theory of political legitimacy, 101–2; theory of representation, 11, 60, 63, 98, 99; theory of sovereignty, 11, 25, 60–61, 79, 93–94, 250n10; theory of the social contract, 64; unity constructed outside the political domain, 111–12; use of the imperative mandate, 71; view of the "political actor," 97; on virtuous leaders, 258n95; vote is a manifestation of a will that is in fact a judgment, 109–10; will defines both freedom and legitimacy, 96. See also On The Social Contract Or Principles of Political Rights (Rousseau) rule of law, 42–43 Saint-Just, Louis-Antoine de, 162, 178, 276n1, 277n7 Saint-Pierre, Abb´e de, 258n99 Saint-Simon, Henri de, 140 Sartori, Giovanni, 3, 32, 235n31 Schmitt, Carl, 22, 62, 67, 198, 235n25, 282n32, 285n73 Schumpeterian theorists, 4, 9, 53, 140 Schumpeter, Joseph, 14, 232n35 S´echelles, H´erault de, 185 secret ballot, 203, 226, 287n82 selective competence, 206–7 self-binding freedom, 97

INDEX

self-government. See sovereignty sensus communis, 135 Shklar, Judith, 77 Sidney, Algernon, 19 Sieyes, Emmanuel-Joseph, 1, 11, 22, 23, 27, 99; on active and passive citizens, 207; administrative subdivision of France into departments, 273n47, 277n13; attempt to mediate between monarchists and republicans, 278n32; claim that individual freedom is more secure in a mono-archic than in a polyarchic republic, 171–73; and Comit´e de Constitution, 162; competence-confidence nexus, 155–56; constitutional plan, 103; on contractual nature of all human relations, 141; debate with Paine, 12; dialectics of the will, 154; disagreement with Condorcet’s plan, 162–67; disagreement with Paine and Condorcet about relation between representative government and the republic, 151; discontinuist view of representation, 271n20; distinction between active and passive citizens, 167, 207; distinction between civil rights and political rights, 149, 150–51; distinction between influence of citizens over representatives as "persons" and their influence over the process of "legislation," 129–30; distinction between "passive" and "active rights," 150–52; distinction between people and nation, 273n54; election as a means of creating "two peoples," 143; freedom, dichotomous meaning of, 146; identification of the third estate with the nation, 272n38; implicitly accused Condorcet of promoting federalism, 89, 209; indirect democracy representative of ideas, 113; as initiator of a state-based sovereignty, 274n67; interdependence as source of freedom, 144–45; lack of distinction between the will of the representatives and that of the citizens, 215; legal equality as precondition for liberty, 172; on legal inequality, 278n34; nondemocratic strategies, 189; philosophy of representation, 140; philosophy of the division of labor,

274n61; political competition translated into language of economic competition, 158; politics as a realm of competence, 143–44; proposal of the marc d’argent, 167; relocated direct democracy to the few, 145; representation attributed to state institutions, 272n45; representative government as the norm, 142, 145; representivity excluded from theory of electoral consent, 147; reservations about creating democracy in a large state, 164; separated legitimacy from the form of government, 172; sociopolitical correspondence paradigm, 140–41, 148; on territoriality of constituencies, 273n46; theory of division of political labor, 219; theory of sovereignty, 152–53; transformation of the people into the nation, 154–55; two possible types of representative government, 165–66, 172; use of word "representation" synonymously with legitimate government, civilized social relations, and liberty, 141 Skinner, Quentin, 120, 241n83 Smith, Adam, 140, 142, 144, 266n61 social choice theory, 31 social contract: agreement to enter Rousseau’s contact must be unanimous and voluntary, 87; Kantian theory of, 123–24 soft power, 2, 74, 115–19. See also judgment sovereignty, popular, 6, 52–59; in ancient Rome, 254n46; antisovereignty argument, 53–54; as an "as if," 125; Condorcet’s interpretation of, 57, 90, 176–77, 184, 193; constructivist approach to, 23; democratic revision of, 25; disassociation between formal and informal, 135–36; discourse theory of, 27; dualism with representation, 73; fictional nature of, 211; form of (forma imperii), 102; general will and general opinion as two manifestations, 74, 108; as a guideline to and limit on legislative power, 126, 221; ideological role, 120; and inclusion, 64; informal, 109–11, 137, 228; judgment as component of, 78, 225; legalistic and formalistic view traditionally associated with, 78;

327

INDEX

sovereignty, popular (Cont.) modern theory of, 29, 54, 253n44; and opinion, 74, 108, 225; parliamentary, myth of, 130; as plural unifying process, 134; pointillist sovereignty, 31; punctuated identity, 94; as res publica, 168; Rousseau’s theory of, 11, 25, 60–61, 79, 93–94, 250n10; Sieyes’s theory of, 152–53; symbolic, of nation, 89, 152–55; three fundamental requirements of, 64–65; uninterrupted temporality, 225; and unity, 64, 69–72; unity of, 69–72; voluntaristic view of, 21, 52; and will, 11, 60, 72–74, 108, 123; of the will, 72–74, 214 Sparta, 34, 35 speech, product of imagination, 122 Spinoza, Baruch, 82, 112, 279n42 State-Person analogy, 21 Statuto dei Lavoratori (Workers’ Charter), 233n9 Steinberg, Hence, 266n59 Stevens, Justice, 226 Stoics, 267n63 Stokes, Susan C., 292n152 strong democracy, theory of, 240n77 suffrage, as a right, 194. See also universal suffrage syllogism paradigm, 192

on great and small political parties, 241n80; on mediocrity democratic competition brings to politics, 158; on two forms of associations democratic citizens create, 38 transcendental schematism, 120–21, 142 Turgot, Anne Robert Jacques, 140, 187, 192, 209, 280n9, 290n123

Tacitus, 251n14 territorial federalization, 164 Thesaurus Linguae Latinae Lipsiae, 201 Thomas Aquinas, 72 Thompson, Dennis F., 268n77 time: Condorcet’s time delay concept, 201–2, 286nn79–80, 288n108; as a political weapon by the participants in the deliberative process, 206 Tocqueville, Alexis de, 140, 268n74, 275n79; America as socially democratic and politically aristocratic, 1; American polity as a democracy because of political equality, 3; democracy and social condition, 270n95; Democracy in America, 131; "democratic society," 171;

Waldron, Jeremy, 263n34, 289n109 Weber, Max, 37–38 Webster, Noah, 289n117 will: as analytical reason, 79; doctrine of general, 23, 92, 107–8, 108, 115, 262n17; immediacy of, 90, 91–92; individual, coordinated, 274n62; vs. judgment, 72–73; politics of, 106; and popular sovereignty, 11, 60, 72–74, 108, 123; power and, 103; public vs. private, 108 Williams, Melissa, 243n97, 246n123 Wilson, James, 278n29 Wolin, Sheldon, 4, 95

328

unity: political representation as process of achieving, 20, 32, 133–34; and popular sovereignty, 64, 69–72 universal suffrage, 1, 9, 15, 24, 41, 59, 152 U.S. Campaign Finance Law, 226 veto, 130 virtual representation, theory of, 151–52 virtue, 81 Voltaire, Franc¸ois-Marie, 192 voting: analogy with money, 147; as an attempt to give ideas weight, 31; Condorcet’s theory of, 178, 193, 196, 205; direct, 31; distinction from deliberating, 16; as a manifestation of a will that is in fact a judgment, 109–10 voting procedures, violations or manipulation of, 59

Young, Iris Marion, 53–54, 246n123